Justice Dept. filing on detaining families together

The administration suggested that because of a recent court order, it would detain children longer than it had before.

Case 2:85-cv-04544-DMG-AGR Document 447 Filed 06/29/18 Page 1 of 12 Page ID
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CHAD A. READLER
Acting Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney General
Civil Division
WILLIAM C. PEACHEY
Director
COLIN KISOR
Deputy Director
SARAH B. FABIAN
Senior Litigation Counsel
U.S. Department of Justice
Office of Immigration Litigation
District Court Section
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962

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Attorneys for Defendants

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JENNY LISETTE FLORES; et al.,
Plaintiffs,

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v.
JEFFERSON B. SESSIONS III,
Attorney General of the
United States; et al.,
Defendants.

) Case No. CV 85-4544-DMG
)
) DEFENDANTSa NOTICE OF
) COMPLIANCE
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The Governmentas June 21, 2018, ex parte application explained that the

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Flores Agreementaas interpreted by this Court and the Ninth Circuitaput the

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Government in the difficult position of having to separate families if it decides it
should detain parents for immigration purposes. Defendants wish to inform the
Court that, following the filing of our application to this Court, a federal district

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court in the Ninth Circuit held that such separation likely violates substantive due

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process under the Fifth Amendment. Ms. L v. U.S. Immigration and Customs

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Enforcement, No. 18-428 (S.D. Cal. June 26, 2018) (attached as exhibit). The Ms.
L court certified a class and entered a class-wide preliminary injunction requiring
reunificationaboth for parents released into the interior of the United States and

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for parents in DHS custodya and barring future separations for families in DHS
custody.

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Defendants are submitting this notice of compliance to explain how the
government is applying the Flores Agreement in light of this injunction. To

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comply with the Ms. L injunction barring parents in DHS custody from being
separated from their children, the Government will not separate families but detain
families together during the pendency of immigration proceedings when they are

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apprehended at or between ports of entry. As explained below, we believe that the

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Flores Agreement permits the Government to detain families together to comply

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with the nationwide order in Ms. L. We nevertheless continue to believe that an
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amendment of the Flores Agreement is appropriate to address this issue. Until that

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amendment, this submission sets out the Governmentas interpretation and

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application of the Agreement in light of Ms. L.
A. There are many legitimate justifications for detaining arriving aliens
under the immigration laws, including well-established rules that allow arriving

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aliens at the border to be detained pending a determination of whether they may

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legally be admitted to the United States. Such detention, which Congress has made

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mandatory in many circumstances under 8 U.S.C. ASS 1225(b), is essential to
protecting our southwest border, discouraging families that are not entitled to
remain in this country from making the dangerous journey to the border, and

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returning families promptly when they are not entitled to relief in this country. See
Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018); cf. Demore v. Kim, 538 U.S.

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510, 526 (2003) (discussing the Supreme Courtas alongstanding view that the

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Government may constitutionally detain deportable aliens during the limited period

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necessary for their removal proceedingsa).
We have explained over a period of years that one impact of the Flores
requirements, if applied to minors that come into DHS custody accompanied by

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their parents, would be the separation of parents from their children. In construing

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the Flores Agreement, over the governmentas objection, to apply to children taken

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into custody with their families, the Ninth Circuit understood that the separation of
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parents from their children was a direct consequence of its holding. Flores v.

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Lynch, 828 F.3d 898, 908-09 (9th Cir. 2016). But the Ninth Circuit also made

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clear that neither the Flores Agreement nor court rulings applying it impose any
legal barrier on the critical authority of DHS to detain adults who come into
immigration custody at the border with their children. Flores, 828 F.3d at 908-09.

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The Ms. L court reached the same conclusion in considering the situation of

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the separation of accompanied children from their parents, this time from the point

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of view of the parents, who were not parties to the Flores case or the Settlement
Agreement. The Ms. L court issued class-wide relief requiring that, in most
circumstances, parents be kept with their children during the pendency of

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immigration proceedings. Notably, like the Ninth Circuit, the court in Ms. L
recognized the authority of DHS to detain parents in immigration custody pending

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resolution of their immigration cases. As the court emphasized, even in light of the

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courtas injunction requiring families to be kept together and reunified, the

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aGovernment would remain free to enforce its criminal and immigration laws, and
to exercise its discretion in matters of release and detention consistent with law.a
Order at 20; see also id. at 3 (aOrder does not implicate the Governmentas

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discretionary authority to enforce immigration laws . . . including its decision to

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release or detain class members.a). Thus, while the Government must keep

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families together when it chooses to exercise its discretion to detain or release a
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parent under the INA, the court cited the Flores in explaining that the Government

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otherwise remains afreea to exercise adiscretion in matters of release and

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detention.a Id at 20 (citing Flores); see id. at 7 (for achildren placed in federal
custody, there are two options,a the first option is separating the family and placing
the child alone in ORR custody and athe second option is family detentiona).

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B. Reading the Flores Agreement together with the subsequent nationwide
order in Ms. L, we understand the courts to have provided that minors who are

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apprehended with families may not be separated from their parents where it is
determined that continued detention is appropriate for the parent. The Flores
Agreement allows this result for two reasons.

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First, the Agreementas express terms accommodate court orders like the one
recently issued in Ms. L. Paragraph 12A of the Flores Agreement provides for the

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release of minors to a parent (or others) when possible under Paragraph 14 or,

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alternatively, transfer to an appropriate facility with a licensed program under

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Paragraph 19. See Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016) (aSettlement
creates a presumption in favor of releasing minors and requires placement of those
not released in licensed, non-secure facilities that meet certain standardsa). But

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these provisions include exceptions to releasing or transferring minors to

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accommodate a ruling like that in Ms. L requiring families to be kept together, and

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those exceptions permit family detention in these circumstances.
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Release provision. In Paragraph 14, the Flores Agreement specifies that a
minor should be arelease[d] from its custody without unnecessary delaya to a

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parent or other relative. Flores Agreement AP 14 (emphasis added). The courtas
order in Ms. L, which requires that the minor be kept with the parent, makes delay
necessary in these circumstances. The minor cannot be released under Paragraph

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14 without separating him or her from their parent, as such a separation would

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violate the injunction issued in Ms. L. See Ms. L Order at 22 (DHS is aenjoined

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from detaining Class Members in DHS custody without and apart from their minor
childrena). Under those circumstances, the release of the minor from custody must
be adelay[ed]a pursuant to the Agreement during the period the parent is detained

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by DHS. Flores Agreement AP 14. Indeed, the courtas order in Ms. L envisions that
a parent would be areunited with the child in DHS custodya and that a child would

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be released only a[i]f Defendants choose to release Class Members [i.e., parents]

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from DHS custodya or if a parent consents. Order at 23 (emphasis added). This

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application of the Flores Agreement is also consistent with another aspect of
Paragraph 14 of the Agreement a which sets placing the minor with aa parenta as
the first aorder of preference.a Flores Agreement AP 14; id. AP 18 (requiring

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acontinuous efforts . . . toward family reunification and . . . releasea) (emphasis

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added); see Flores, 828 F.3d at 903 (a[t]he settlement creates a presumption in

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favor of release and favors family reunificationa) (emphasis added).
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Transfer provision. The Flores Agreement also permits transfer of a child to

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a licensed program under Paragraph 19. See Flores Agreement AP 12A. Under

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Paragraph 12A, during an influx DHS is required to transfer a minor for placement
in a licensed program aas expeditiously as possible.a Id. AP 12A.3. But the
obligation to transfer applies aexcept . . . as otherwise required by any court decree

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or court-approved settlement.a Id. AP 12A.2. Here, the court decree in Ms. L

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prohibits the transfer of the minor to a licensed program, because such a transfer

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would separate the child from his or her parent. Ms. L Order at 22. A transfer
therefore cannot occur consistent with that court decree. 1

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Second, both Ms. L and Flores expressly envision that adults who arrive at

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the United States with children are properly subject to detention a a critical aspect
of border enforcement. Given that express conclusion in each decision, it would be

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remarkable to read the orders together as mandating the opposite conclusion a that

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detention may never occur. Doing so would undermine the express holdings in

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both cases. Ms. L, for its part, held that DHS would retain the same authority to
detain the parent as it had before a it simply required that such detention be of the

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The issue regarding how the Flores Agreement licensing provisions apply to
family detention centers is the subject of ongoing litigation. But to the extent that
family detention centers are treated as licensed consistent with the Flores
Agreement, a transfer under this provision could occur consistent with Ms. L. We
have also asked this Court to modify the Agreement to permit the transfer of
families together to family residential centers without requiring a state license.
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family as a unit. See Ms. L Order at 3 (aOrder does not implicate the

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Governmentas discretionary authority to enforce immigration laws . . . including its

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decision to release or detain class membersa); id. at 22 (DHS may achoose to
releasea class members).
Likewise, the Ninth Circuit ruling in Flores held that the asettlement does

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not require the government to release parents.a Flores, 828 F.3d at 908; see also

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Bunikyte v. Chretoff, 2007 WL 1074070, at *16 (W.D. Tex. 2007) (rejecting

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argument that Flores Agreement required release of both minors and parents). As
the Ninth Circuit explained, providing rights to minors under the agreement adoes
not mean that the government must also make a parent availablea by releasing the

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parent with the child. Flores, 828 F.3d at 908; id. at 909 (aparents were not
plaintiffs in the Flores action, nor are they members of the certified class,a and the

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settlement atherefore provides no affirmative releases rights for parentsa). Because

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the Flores Agreement does not require the release of parents, and Ms. L requires

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DHS to keep parents and children together when the parents are in detention, the
rulings work together to permit detention of parents with their minor children with
whom they are apprehended.

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C. No other aspect of the Flores Agreement or Ms. L require the United
States to release all individuals held in border-related detention when they arrive at

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the border with children. Instead, other aspects of the rulings lead to the opposite
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conclusion. The Ms. L ruling addresses reunification of children with their parents,

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and specifically requires reunification awhen the parent is returned to immigration

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custodya after a release from criminal custody. Order at 10; see id. at 11 (court
order provides for areunification during intervening . . . ICE detention prior to
actual removal, which can take monthsa). But this aspect of the Ms. L ruling

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would make little sense if that reunification would necessitate an immediate release

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of the parents from immigration custody under the Flores Agreement.

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The Ms. L decree also provides that the parent may consent to the release of
the child without the parent. Order at 23 (parent may aaffirmatively, knowingly,
and voluntarily decline[] to be reunited with the child in DHS custodya). This

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authority permits the continued operation of the provisions of the Flores
Agreement governing release of the child a albeit with the accompanying parentas

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consent before they go into effect. Relying on a parentas consent in these

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circumstances where the family is together makes sense, particularly because

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plaintiffs in this case have always agreed that detention of the family together is
permissible if the parent consents. See Flores, Transcript at 37-38 (April 24,
2015) (in response to question whether the aagreement allows[s] for an

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accommodation to . . . a parent who wishes to remain in the [family residential]

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facility,a athe plaintiffsa positions is . . . a class member is entitled to waive those

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rightsa and that waiver may aparents speak for children all the timea) (relevant
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pages attached as exhibit); see also

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https://www.npr.org/2018/06/22/622678753/the-history-of-the-flores-settlement-

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and-its-effects-on-immigration (June 22, 2018) (last visited June 29, 2018)
(counsel for plaintiffs explaining that achoicea to remain in family detention ais
not something the Flores settlement itself addresses or preventsa). That is a

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preference expressed by other plaintiffs who have challenged family separation.2

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This aspect of the Ms. L order a allowing release of the child with the consent of

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the parent a would make little sense if the Government was under an affirmative
obligation to release the entire family together.

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D. Accordingly, for the reasons explained, the Flores Agreement permits

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the Government to detain families together given the nationwide order in Ms. L
that bars the separation of families in DHS custody. To comply with the Ms. L

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injunction, the government will not separate families but detain families together

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during the pendency of immigration proceedings when they are apprehended at or

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between ports of entry and therefore subject to the Ms. L injunction.

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See Mejia-Mejia v. ICE, No. 18-1445, Complaint AP 4 (D.D.C. filed June 19,
2018) (aIf, however, the government feels compelled to continue detaining these
parents and young children, it should at a minimum detain them together in one of
its immigration family detention centersa); Padilla v. ICE, NO. 18-928 (W.D.
Wash), Complaint AP 12 (aIf, however, the government insists on continuing to
detain these parents and children, it must at a minimum detain them together in one
of its immigration family detention centers.a).
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DATED:

June 29, 2018

Respectfully submitted,

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CHAD A. READLER
Acting Assistant Attorney General

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/s/ August E. Flentje
AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney
General
Civil Division
WILLIAM C. PEACHEY
Director
COLIN KISOR
Deputy Director
SARAH B. FABIAN
Senior Litigation Counsel
U.S. Department of Justice
Office of Immigration Litigation
District Court Section
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962

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Attorneys for Defendants

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CERTIFICATE OF SERVICE

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I hereby certify that on June 29, 2018, I served the foregoing pleading on all

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counsel of record by means of the District Clerkas CM/ECF electronic filing

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system.

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/s/ August E. Flentje
August E. Flentje
Attorney for Defendants