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Case 1 :05-cv-01458-UNA-AK Document 36 Filed 05/10/2007 Page 1 of 12 



TNTHE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMHA 



Hamoodahv. Bush 
Tumaniv. Bush 
Al Ginco v. Bush 
Ahmed Doe v. Bush 
Al Wazanv. Bush 
Naseerv. Bush 
AlGhizzawiv. Bush 



Case No. 05-CV-0795 (RJL) 
Case No. 05-CV-0526 (RMU) 
Case No. 05-CV-1310 (RJL) 
Case No. 05-CV-1458 (ESH) 
Case No. 05-CV-0329 (PLF) 
CaseNo.06-CV-1689(RMU) 
Case No. 05-CV-2378 (JDB) 



RESPONDENTS REPLY MEMORANDUM TN SUPPORT OF MOTIONTO DISMISS 
AND RESPONSE TN CONNECTION WTTH RELATED MOTIONS 

PRELTMINARY STATEMENT 

As explained in Respondents' Motion to Dismiss, the law of this circuit announced 
recently in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert, denied, 127 S. Ct. 1478 
(Apr. 2, 2007), requires dismissal of this case. See Military Commissions Act of 2006 ("MCA"), 
Pub. L. No. 109-366, § 7, 120 Stat. 2600. Petitioners in these cases oppose Respondents' motion 
to dismiss, variously contending that the Court of Appeals' decision in Boumediene is not truly 
final, that "abeying" these actions is more appropriate than dismissing them, that transfer to the 
Court of Appeals (which could never have had jurisdiction over these cases) is appropriate, or 
that for other reasons the direction that the Court of Appeals provided in Boumediene to dismiss 
these cases should not be followed. Petitioners' proposed course of action is untenable and 
without basis in law. 

ARGUMENT 



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I. THE LAW OF THE CIRCUIT REQUIRES DISMISSAL OF THESE CASES 

The decision of the Court of Appeals for the District of Columbia Circuit in Boumediene 
requires dismissal of these habeas cases. See Boumediene, 476 F.3d at 986, 994. The decision in 
Boumediene is final and is the law of the circuit. See Ayuda, Inc. v. Thornburgh, 919 F.2d 153, 
154 (D.C. Cir. 1990) (Henderson, J. , concurring) ("[o]nce [an] opinion [is] released it [becomes] 
the law of this circuit"). Indeed, the Court of Appeals has recognized as much by dismissing for 
lack of jurisdiction other detainees' habeas cases, pursuant to Boumediene. See Kiyemba v. 
Bush, Nos. 05-5487, et al. (D.C. Cir. Order of Mar. 22, 2007) (attached as Exhibit D to Resps' 
Mot. to Dismiss); Paracha v. Bush, Nos. 05-5194, etal. (D.C. Cir. Order of Apr. 9, 2007) 
(attached as Exhibit E to Resps' Mot. to Dismiss); Zalita v. Bush, No. 07-5129 (D.C. Cir. Order 
of Apr. 25, 2007). And the Supreme Court's refusal to review Boumediene underscores the fact 

that that decision is final and binding. See 127 S. Ct. 1478; see also Boumediene v. Bush, 

S.Ct. , 2007 WL 1225368 (2007) (denying petitioners' motion for extension of time in which 

to file a petition for rehearing of the order denying certiorari and denying petitioners' motion for 

suspension of the order denying certiorari); Hamdan v. Gates, No. 06-1169, S. Ct. (Apr. 

30, 2007) (denying cert.). Petitioners, therefore, have no legal grounds on which to postpone 
dismissal of their habeas cases. 

Petitioners argue that it is inappropriate to rely on Judge Henderson's concurrence in 
Ayuda, in which Judge Henderson stated that "[o]nce [an] opinion [is] released it [becomes] the 
law of this circuit." 919 F.2d at 154. But Judge Henderson's statement was merely an express 
statement of the reasoning inherent in the majority opinion, which held that because the Court of 
Appeals had issued a prior opinion deciding that the district court lacked jurisdiction, a later 
order of the district court should be stayed based on that earlier Court of Appeal opinion, even 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 3 of 1 2 

though (as here) the mandate had not yet issued from that earlier opinion. Thus, Ayuda - and 

not just Judge Henderson's concurrence - stands for the proposition that a decision of the Court 

of Appeals is binding in the Circuit regardless of whether the mandate has issued. As the Court 

of Appeals for this Circuit put the matter in another case, 

While law-of-the-case doctrine is a prudential creation of the courts, the 
law-of-the-circuit doctrine is derived from legislation and from the structure of the 
federal courts of appeals. Courts of appeals sit in panels, or divisions, of "not more than 
three judges" pursuant to the authority granted in 28 U.S.C. § 46(c). The "decision of a 
division" is "the decision of the court." Revision Notes to 28 U.S.C. § 46 (citing Textile 
Mills Sec. Corp. v. Commissioner, 314 U.S. 326 (1941)); see Critical Mass Energy 
Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 876 (D.C.Cir.1992) (in banc), cert, 
denied, 507 U.S. 984 (1993). Were matters otherwise, the finality of our appellate 
decisions would yield to constant conflicts within the circuit. Textile Mills Sec. Corp., 
314 U.S. at 335. 

LaShawnA. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) {en banc). If, as the court said in that 

case, "[o]ne three-judge panel . . . does not have the authority to overrule another three- judge 

panel of the court," id., this Court certainly lacks the authority to disregard Boumediene. 

Many of the petitioners try to evade the application of Boumediene by relying on a 

wholesale misreading of Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998). 

Petitioners argue that Steel Co. somehow means that the presence of an arguably nonfrivolous 

claim on the merits prevents dismissal of a case on jurisdictional grounds regardless of Circuit 

precedent. Such a reading is simply untenable. Indeed, Steel Co. strongly supports dismissal of 

these cases, because it reguires Courts to decide jurisdictional issues before merits guestions, and 

reguires a court that lacks jurisdiction to dismiss a case forthwith. If Petitioner's reading of Steel 

Co. were correct, the myriad jurisdictional statutes found in the United States Code and the 

voluminous caselaw on the subject would be meaningless; all that a plaintiff or petitioner would 

need to do to have a federal court exercise jurisdiction over his or her case would be to state a 

claim that is not frivolous on its merits. 



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The unanimous Court in Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), 

explained Steel Co. in the following terms: 

In Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998), this Court adhered to 
the rule that a federal court may not hypothesize subject- matter jurisdiction for the 
purpose of deciding the merits. Steel Co rejected a doctrine, once approved by several 
Courts of Appeals, that allowed federal tribunals to pretermit jurisdictional objections 
"where (1) the merits guestion is more readily resolved, and (2) the prevailing party on 
the merits would be the same as the prevailing party were jurisdiction denied." Id., at 93, 
. Recalling "a long and venerable line of our cases," id., at 94, Steel Co. reiterated: "The 
reguirement that jurisdiction be established as a threshold matter ... is 'inflexible and 
without exception,'" id., at 94-95 (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 
379, 382 (1884)); for "[ jurisdiction is power to declare the law," and "'[wjithout 
jurisdiction the court cannot proceed at all in any cause,'" 523 U.S., at 94 (guoting Ex 
parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)). 

526 U.S. at 577. Under that long-standing rule, this Court simply lacks the authority to do 

anything other than to consider its jurisdiction, and then, in accordance with binding circuit 

precedent, to dismiss these cases. 

H. THE EXISTENCE OF DTA REMEDIES DOES NOT UNDERMINE THE 
CONIROTTING NATURE OF BOUMEDIENE 

Some petitioners contend that thatBoumediene does not control any case in which the 

petitioner is pursuing a DTA petition in the Court of Appeals. That argument is wholly without 

merit. The Court of Appeals held in Boumediene that Section 7 of the MCA eliminates federal 

court jurisdiction over habeas petitions filed by the detainees at Guantanamo Bay. See 476 F.3d 

at 986, 994; see also Boumediene, 476 F. 3d at 992 (holding that an alien "without property or 

presence in this country has no constitutional rights, under the due process clause or otherwise" 

), and referred to dismissal of the habeas cases and vacatur of the district court opinions "as the 

only recourse." 476 F.3d at 994. of the cases in which petitioners are exhausting their remedies 

under the DTA is pure fiction. In denying certiorari, the Supreme Court declined to review the 

Court of Appeals decision in Boumediene, including that Court's conclusion that Section 7 of the 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 5 of 1 2 

MCA requires dismissal of the detainees' habeas cases. 1 Thus, petitioners have no right to 
pursue their habeas cases, even after they have pursued their remedies under the DTA. 

Norcan this Court findabasisinflh/nes v. Weber, 544 U.S. 269 (2005), to conclude it 
has discretion to stay the habeas cases pending exhaustion of DTA remedies. Filing a DTA 
petition is not merely an exhaustion requirement for these habeas cases, but is the only 
jurisdictionally proper action that can presently be pursued by petitioners. In contrast, in 
Rhines, the habeas petitioner would have been able to pursue his habeas action in federal court, 
after exhaustion of remedies in state court, so long as the federal statute of limitations had not 
run. 544 U.S. at 272-73. The Court held that, in those circumstances, no statute barred the 
district court from staying petitioner's federal habeas action so that it could be pursued post- 
exhaustion. See Rhines, 544 U.S. at 276 (noting that federal courts' authority to enter stays in 
habeas- related matters is constrained by applicable statutes). 

Here, pursuant to statute, the courts lack jurisdiction over these habeas cases. 
Accordingly, there is no reason to maintain the cases pending exhaustion of DTA remedies. As 
the Court of Appeals has acknowledged, dismissal of the habeas cases is the "only recourse." 
Boumediene, 476 F.3d at 994. Thus, there is nothing for the district court to do, except dismiss 
the cases. SeeParacha v. Bush, No. 05-5194, etal. (D.C. Cir. Order of Apr. 9, 2007) (attached 
as Exhibit E to Resps' Mot. to Dismiss) (remanding to the district court with instruction to 
dismiss the habeas petitions for lack of jurisdiction). 
IH. TRANSFER PURSUANT TO 28U.S.C. § 1631 IS NOT AVARABLE BECAUSE 



1 Moreover, given that the Supreme Court declined to review the Boumediene decision, 
the statement of Justices Kennedy and Stevens accompanying the denial of certiorari cannot 
plausibly be read, as some petitioners suggest, to mean that they would interpret dismissal of the 
underlying habeas actions as an "additional step[]" that "prejudice[s] the position of the 
petitioners." 127 S. Ct. 1478. 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 6 of 1 2 

THERE IS NO NEED FOR SUCH A TRANSFER AND THE COURT OF 
APPEALS WOULD NOT HAVE HAD JURISDICTION OVER A HABEAS 
CORPUS ACTION 

Nor is transfer of these matters from this Court to the Court of Appeals for this Circuit 

pursuant to 28 U.S.C. § 1631 available in these cases. The relevant statute provides: 

Whenever a civil action is filed in a court as defined in section 610 of this title or 
an appeal, including a petition for review of administrative action, is noticed for or filed 
with such a court and that court finds that there is a want of jurisdiction, the court shall, if 
it is in the interest of justice, transfer such action or appeal to any other such court in 
which the action or appeal could have been brought at the time it was filed or noticed, 
and the action or appeal shall proceed as if it had been filed in or noticed for the court to 
which it is transferred on the date upon which it was actually filed in or noticed for the 
court from which it is transferred. 

28 U.S.C. § 1631. 

"There are three elements to a section 1631 transfer: (1) there must be a lack of 
jurisdiction in the district court; (2) the transfer must be in the interest of justice; and (3) the 
transfer can be made only to a court in which the action could have been brought at the time it 
was filed or noticed." Ukiah AdventistHosp. v. FTC, 981 F.2d 543, 549 (D.C. Cir. 1992) 
(citations omitted). To be sure, the "lack of jurisdiction" prong is satisfied in these cases. But 
the second and third elements are not at all satisfied. 

The interest of justice would be disserved by transfer in this case. Anyone who can file a 
petition under the DTA - as the petitioners in the various Guantanamo Bay habeas cases can 
readily do, as evidenced not only by the provisions of the DTA itself, but also by the fact that 
dozens have now done so or announced their intention to do so soon - has no need to have his 
district court case transferred to the D.C. Circuit. No legitimate purpose would be served by a 
transfer. See, e.g., Esposito v. Comm'r, 208 F. Supp. 2d 44, 46 (D.D.C. 2002) (holding that 
transfer would not serve the interest of justice because the plaintiff had already filed an appeal in 
the proper forum); In re Dep't of Energy Stripper Well Litig L , 206 F.3d 1345, 1354 (10th Cir. 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 7 of 1 2 

2000) (holding that transfer was not in the interest of justice because the plaintiff states had had 
"ample opportunity to pursue [their] cases in the proper forum" but had consciously chosen to 
pursue their cases in the Tenth Circuit). 

The third requirement for § 1631 transfer, which demands that the transferee court be a 
"court in which the action or appeal could have been brought at the time it was filed/' 28 U.S.C. 
§ 1631, is also not met. The Court of Appeals has not had, and does not have, jurisdiction to 
consider petitions for writs of habeas corpus. See 28 U.S.C. § 2241(a) (authorizing 
consideration of applications for habeas corpus by individual circuit judges, but not by courts of 
appeals); 28 U.S.C. § 2241(e)(1) (as amended by the MCA) (no court may consider application 
for habeas corpus by alien detained as enemy combatant). Thus, the petitioners' habeas corpus 
actions could not have been brought in the Court of Appeals at the time they were filed or at any 
time thereafter, and a transfer would not serve the purpose behind § 1631, which is to aid 
litigants who were simply "confused about the proper forum for review," Am. Beef Packers, Inc., 
v. Interstate Commerce Comm'n, 111 F.2d 388, 390 (D.C. Cir. 1983). 

Nor would a transfer that would preserve current District Court orders authorizing 
counsel access be appropriate. Such a transfer would conflict with § 1631 and amount to an 
improper continued exercise of jurisdiction by this Court. Even in cases where § 1631 transfer is 
available, the terms of § 1631 provide that a transferred case "shall proceed [in the transferee 
court] as if it had been filed in or noticed for the court to which it is transferred on the date upon 
which it was actually filed in or noticed for the court from which it is transferred." 28 U.S.C. 
§ 1631 . That means that if transfer were authorized under § 1631, further proceedings in the 
Court of Appeals would be governed by procedures appropriate to review in the Court of 
Appeals, not by the procedures that were imposed by this Court for the purposes of habeas 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 8 of 1 2 

corpus litigation. The Court of Appeals must establish its own procedures, based on the 

procedural rights that Congress provided to detainees in the DTA and appropriate to the nature 

of the Court of Appeals' review under the DTA . See Mot. to Dismiss at 9- 1 1 . 

When the D .C . Circuit faced the guestion of whether to convert the appeals in 

Boumediene into DTA cases, it instead considered itself constrained to dismiss the cases for lack 

of jurisdiction. See Boumediene, 476 F.3d at 994. Now that it is clear that the District Court 

lacks jurisdiction, dismissal - not transfer- is the only appropriate action. See Steel Co., 523 

U.S. at 94 (1998) ("Jurisdiction is power to declare the law, and when it ceases to exist, the only 

function remaining to the court is that of announcing the fact and dismissing the cause." (guoting 

Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869))). 

IV. THE COURT SHOULD REJECT PETITIONERS' REQUEST THAT THESE 
CASES BE MAINTAINED FOR THE PURPOSE OF THE COURT 
CONTINUING TO EXERCISE JURISDICTION REGARDING COUNSEL 
ACCESS AND ADVANCE NOTICE OF TRANSFER 

Many of the Petitioners also want the Court to maintain these habeas cases on the theory 
that this would allow the Court to continue to exercise jurisdiction regarding counsel access and 
other matters. They contend that this Court has authority to preserve those orders to protect the 
status guo, pending a determination as to the Court's jurisdiction over the habeas petitions. They 
are not correct either as to the nature of the Court' s authority in this regard or as to whether their 
theory would justify denial of respondents' Motion to Dismiss. 

As has been explained, the Court of Appeals has already determined that federal courts 
lack jurisdiction over petitioners' habeas cases, see 476 F.3d at 986, 994, and the Supreme Court 
has declined to review that ruling, see 127 S. Ct. 1478. Accordingly, this Court cannot adopt the 
convoluted logic under which it would have the authority to exercise jurisdiction for the purpose 
of entering or maintaining its orders. Neither United States v. United Mine Workers, 330 U.S. 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 9 of 1 2 

258 (1947), on which many of the petitioners rely, nor any other authority supports such logic. 
See United Mine Workers, 330 U.S. at 291 {"Until its judgment declining jurisdiction should be 
announced, [the court of appeals] had authority, from the necessity of the case, to make orders to 
preserve the existing conditions and the subject of the petition[.]") (emphasis added). 

Petitioners cannot effectively claim that their habeas actions must be maintained until 
this Court has answered all the guestions about DTA proceedings and the scope of its review in 
order to preserve potential remedies before this Court and on appeal. Even if guestions remained 
as to the scope of proceedings under the DTA, that would provide no basis to maintain habeas 
cases so the Court could exercise jurisdiction that it lacks. The Court of Appeals, in proceeding 
with the DTA cases, will answer those guestions as necessary. If petitioners obtain adverse 
rulings in their DTA cases, the remedy will be to seek review in the Supreme Court, not to 
resurrect the district court habeas cases. 

In particular, petitioners ask that the protective order entered in many of these cases 
remain in place to ensure counsel access. 2 To the extent that an issue such, as counsel access or 
any other appropriate matter is to be addressed it miEt be addressed in tfe 
the context of properly filed DTA petitions for review of CSRT deberninations. The Court of 
Appeals must establish its own procedures, based on any procedural rights that Congress 
provided to detainees in the DTA and appropriate to the nature of the Court of Appeals' review 
undertheDTA. Cf. Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 



2 The fact that certain elements of the Protective Order will survive dismissal of these 
cases does not support petitioners' position in this regard. Portions of the Protective Order detail 
how classified and protected information will be handled after termination of the case. The 
obligations accepted by petitioners' counsel by signing the Protective Order survive under the 
terms of that Order, regardless of why the case is ultimately dismissed. The vitality of those 
portions of the Protective Order has no bearing on whether this Court retains jurisdiction in light 
of the Boumediene decision. 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 1 of 1 2 

1984) ("By lodging review of agency action in the Court of Appeals, Congress manifested an 
intent that the appellate court exercise sole jurisdiction over the class of claims covered by the 
statutory grant of review power."); id. at 75, 78-79 (reguest for relief in district court that might 
affect Court of Appeals' future, exclusive jurisdiction is subject to the exclusive review of the 
Court of Appeals). Indeed, issues relating to the scope and terms of an appropriate protective 
order and counsel access regime already are being addressed in the Court of Appeals in two 
pending DTA petition cases, Bismullah v. Gates, No. 06-1197 (D.C. Cir), and Parhat v. Gates, 
No. 06-1397 (D.C. Cir), with oral argument scheduled for May 15, 2007. 3 Inany event, 
petitioners and their counsel may maintain continued access by filing a DTA petition and 
agreeing to an interim counsel access regime without prejudice to whatever right petitioners have 
to seek a different regime in the Court of Appeals. See M ot. to D ismiss at 1 0- 1 1 . 

Further, it is neither necessary nor appropriate that the Court maintain these habeas cases 
in order to preserve or maintain orders issued in some of the cases that prohibit respondents from 
transferring petitioners from Guantanamo Bay to another country without thirty days' advance 
notice to the Court and counsel. As respondents have demonstrated in numerous filings in this 
Court, in any transfer of a Guantanamo detainee, a key concern is whether the receiving 
government will treat the detainee humanely and in a manner consistent with its international 
obligations; specifically, it is the policy of the United States not to repatriate or transfer a 
detainee to a country where the United States believes it is more likely than not that the 



3 In light of the Court of Appeals' upcoming consideration of various preliminary issues 
in the DTA litigation, continuation of the district court counsel access regime is not only 
unnecessary, but such action has the potential to create significant problems of concurrent and 
conflicting obligations on the parties. In the interests of clarity and comity, the Court should not 
maintain the district court counsel access regime indefinitely during the pendency of DTA 
litigation. Instead, the Court should allow the Court of Appeals to establish its own procedures 
based on any procedural rights that Congress provided to detainees in the DTA. 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 1 1 of 1 2 

individual will be tortured. See, e.g., Al Darbi v. Bush, Civ. No. 05-2371 (RCL) Resps' Mem. in 
Opp. to Pets' Mot. for Prelim. Inj. Requiring Advance Notice of Any Transfer or Removal at 7-9 
(Dkt. no. 26) (filing including description of policy of not transferring person to a country when 
the United States believes it would be more likely than not the person would be tortured). 

In addition, as has been explained, the District Court is without jurisdiction in this matter 
and, specifically, with respect to issues relating to detainee transfers. As recognized in 
Boumediene, Section 7 of the MCA eliminates jurisdiction not only over habeas actions, but also 
over all cases "'which relate to any aspect of the detention, transfer, treatment, trial, or 
conditions of detention of an alien detained by the United States since September 11, 2001.'" 
See 476 F.3d at 986-87. Thus, the MCA expressly bars claims relating to any transfer of a 
petitioner. Indeed, the Court of Appeals recently dismissed for want of jurisdiction Guantanamo 
detainee cases involving advance notice of transfer orders, see Judgment filed Mar. 22, 2007 in 
Kiyemba v. Bush, Nos. 05-5487, et al (D.C. Cir.) (attached as Exhibit D to Resps' Mot. to 
Dismiss), as well as a case in which a detainee sought to enjoin his proposed transfer from 
Guantanamo Bay, seeZalita v. Bush, No. 07-5129 (D.C. Cir. Order of Apr. 25, 2007); S. Ct. 
Order of May 1, 2007 (denying motion for injunctive relief)). 4 

CONCLUSION 

For the foregoing reasons, Respondents respectfully request that the Court dismiss 

petitioners' habeas cases for lack of jurisdictiori 

Dated: May 10, 2007 Respectfully submitted, 

PETER D.KEISLER 
Assistant Attorney General 



Copies of these orders are attached as Exhibit G . 



Case 1 :05-cv-01 458-UNA-AK Document 36 Filed 05/1 0/2007 Page 1 2 of 1 2 



DOUGLAS N. LETTER 
Terrorism Litigation Counsel 



/s/ JudryL. Subar 



JOSEPH H. HUNT (D.C. Bar No. 431134) 

VINCENT M. GARVEY (D.C. Bar No. 127191) 

JUDRY L. SUBAR (D.C. Bar 347518) 

TERRY M. HENRY 

JEAN LIN 

JAMES J. SCHWARTZ (D.C. Bar No. 468625) 

ROBERT J. KATERBERG 

NICHOLAS J. PATTERSON 

ANDREW I. WARDEN 

EDWARD H. WHITE 

NICHOLAS A. OLDHAM 

JAMES C.LUH 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. 

Washington, DC 20530 

Tel: (202)514-4107 

Fax: (202)616-8470 



Attorneys for Respondents