Summary
In Lawrence v. Motorola, Inc., No. 04-1553, 2006 WL 1371615, at *4 (D. Ariz. May 16, 2006), the court did not suggest that it was a breach of fiduciary duty to fail to address certain issues, but simply concluded that, "if an administrator fails to reach an issue, de novo review will... apply to the determination of that issue."
Summary of this case from Harju v. OlsonOpinion
No. CV 04-1553-PHX-NVW.
May 16, 2006
ORDER
The court has before it Plaintiff's Motion for a Review De Novo, Doc. # 36; Plaintiff's Statement of Facts in Support of his Motion, Doc. # 37; Defendants' Response to Plaintiff's Motion, Doc. # 41; Defendants' Response to Plaintiff's Statement of Facts, Doc. # 41, Attachment # 1; Defendants' Statement of Facts, Doc. # 42; and Plaintiff's Reply, # 51.
In April 2000, Plaintiff ("Lawrence") filed a claim for disability benefits with his employer, Motorola, Inc. ("Motorola"), to receive disability benefits under the Motorola Disability Income Plan ("Plan"). Lawrence received disability benefits until January 14, 2003, at which point Motorola terminated Lawrence's disability benefits because (1) Lawrence had failed to attend two Independent Medical Examinations ("IMEs") and (2) Lawrence had failed to provide objective medical evidence establishing his disability. Lawrence appealed and on November 10, 2003, Motorola upheld its initial denial on the ground that Lawrence failed to establish his claimed disability with objective medical evidence. Lawrence brought this action pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"). 29 U.S.C. § 1132(a)(1)(B).
The issue before the court is the proper standard of review for determining whether Motorola erred by denying Lawrence's disability claim. Lawrence argues that the appropriate level of review is de novo while Motorola argues that abuse of discretion should be the reviewing standard. Lawrence conducted discovery on the issue of whether Motorola acted under a conflict of interest.
I. Statement of Facts
A. Lawrence's Claim
Lawrence has worked at Motorola for over twenty years, Plaintiff Statement of Facts ("PSOF") at ¶ 2, and was eligible for the Motorola Disability Income Plan. Defendants Response to Plaintiff's Statement of Facts ("DRTPSOF") at 2 (responding to PSOF at ¶ 3). In July 1997, Lawrence began receiving short-term disability benefits. PSOF at ¶ 4. On January 29, 1998, Lawrence was released for work. DSOF at 2.
In April 2000, Lawrence stopped working and applied for disability. PSOF at ¶ 6. Lawrence alleged that he was suffering from a combination of abdominal pain, leg pain, neck pain, headaches, recurring neuromas, degenerative disc disease, hernia repairs with mesh wiring, multiple inguinal herniorrhaphies, painful staples, degenerative disc disease of the knees, depression, and medication side effects. PSOF at ¶ 11. Three of Lawrence's treating doctors — Dr. Gerald Wolfley, Dr. Herbert Goodman, and Dr. James Gough — have opined that Lawrence is disabled. Defendants Response to Plaintiff's Statement of Facts ("DRTPSF") at 6-7 (responding to PSOF at ¶ 12).
Lawrence received short-term benefits from April 2000 to October 2000 and received long-term benefits from October 20, 2000 through December 31, 2000. PSOF at ¶ 23. At some point in early 2001, Motorola denied Lawrence's claim because a CORE physician believed that, based on a conversation he had with Dr. Wolfely, Lawrence was not disabled. DSOF at ¶ 17. Lawrence submitted the treating records of two of his treating doctors, including Dr. Wolfely, who opined that he was disabled, and Motorola reinstated benefits on March 8, 2001. DSOF at ¶ 17. Lawrence continued to receive long-term benefits until January 14, 2002, when, according to Motorola, Lawrence failed to provide documentation of a continuing disability. DSOF at ¶ 18. On January 21, 2002, Motorola reinstated benefits through August 31, 2002. DRTPSOF at 14 (referring to PSOF at ¶ 23). Lawrence continued to receive benefits until January 14, 2003, at which point Motorola terminated Lawrence's disability benefits because (1) Lawrence failed to provide objective medical evidence establishing a disability and (2) Lawrence missed two schedule IMEs. On November 10, 2003, Motorola upheld its initial denial because of a purported lack of objective medical evidence establishing Lawrence's disability. DSOF at ¶ 29.
Lawrence filed a claim with the Social Security Administration, claiming that his various ailments and related pain rendered him disabled and unable to perform any occupation. The Social Security Administration approved Lawrence's disability claim. PSOF at ¶ 18.
B. The Motorola Disability Income Plan
Motorola is the designated administrator and fiduciary of the Plan. DSOF at ¶ 4. Section 10.1 of the Plan expressly provides that Motorola delegates its administrative authority to an Administrative Committee, whose members — one or more — are appointed by the Compensation Committee of the Board of Directors of Motorola. DSOF at ¶ 5. Section 10.8 of the Plan provides that the Administrative Committee has the authority to designate other persons to carry out all or a specified part of its responsibilities. DSOF at ¶ 8. Section 2.19 of the Plan provides that the "Motorola Disability Management Program" is an independent disability management organization retained to certify a treating physician's opinion. DSOF at ¶ 8. The Plan then identifies CORE, Inc. as the Motorola Disability Management Program. During the determination of Lawrence's claim, Mutual of Omaha replaced CORE as Motorola's independent disability management organization. PSOF at ¶ 26. When CORE or Mutual of Omaha cannot make a disability determination, the claim is referred to the named fiduciary designated by Motorola to make a claim determination. PSOF at ¶ 26.
At oral argument on May 12, 2006, Motorola stated that CORE makes the initial disability determination without review by anyone at Motorola. At the appeal level, however, a designated person at Motorola reviews CORE's disability recommendation and reviews the claimant's entire medical file.
II. Standard of Review
A. Standard for Summary Judgment
To defeat a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248 (1986). In the absence of such facts, "the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citations omitted).
The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Id. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. Although the initial burden is on the movant to show the absence of a genuine issue of material fact, this burden may be discharged by indicating to the court that there is an absence of evidence to support the nonmoving party's claims. See Singletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 193 n. 2 (3d Cir. 2001). When parties file cross motions for summary judgment, a court must determine whether summary judgment for either party is appropriate. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
B. Standard of Review for Denial of Benefits
"A denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the plan provides such discretionary authority to the administrator or fiduciary, the standard of review is abuse of discretion. Atwood v. Newmont Gold Co., 45 F.3d 1317, 1321 (9th Cir. 1994).
However, if an affected beneficiary produces material, probative evidence, beyond the mere fact that an apparent conflict exists, that the plan administrators were breaching their fiduciary duty, a presumption arises that the administrator breached its fiduciary obligations to the beneficiary. Hensley v. Northwest Permanente P.C. Retirement Plan Trust, 258 F.3d 986, 995 (9th Cir. 2001). "[M]aterial, probative evidence may consist of inconsistencies in the plan administrator's reasons, insufficiency of those reasons, or procedural irregularities in the processing of the beneficiaries claims," Nord v. Black and Decker Disability Plan, 356 F.3d 1008, 1010 (9th Cir. 2004), as well as the failure to provide a claimant with a full and fair hearing. Friedrich v. Intel Corp., 181 F.3d 1105, 1110 (9th Cir. 1999). Where a plaintiff meets his initial burden, the administrator "must rebut the presumption by producing evidence to show that the conflict of interest did not affect its decision to deny or terminate benefits." Hensley, 258 F.3d at 995. If the administrator fails to rebut the presumption, the district court reviews the administrator's decision to deny benefits under the de novo standard." Id.
III. Analysis
The Plan provides that it shall have discretion in determining eligibility benefits. DSOF at ¶ 11. ("The Committee shall have discretionary authority to grant or deny benefits under the Plan. Benefits under the plan will be paid only if the Committee decides in its discretion that the applicant is entitled to them."). Lawrence does not dispute that the Plan confers discretion to the Administrator. The standard of review is therefore abuse of discretion unless Lawrence can produce material, probative evidence that the plan administrators breached their fiduciary duties.
Lawrence presents four arguments for why Motorola's decision to terminate Lawrence's long-term disability benefits should be reviewed de novo review rather than for an abuse of discretion. Those arguments include: (1) Motorola's failure to exercise discretion, (2) the fact that Motorola decides disability claims and pays benefits, (3) the presence of procedural ERISA violations, and (4) evidence demonstrating a conflict of interest.
Lawrence presents multiple other arguments that, while perhaps relevant to whether Motorola properly decided Lawrence's claim, are not relevant to whether Motorola breached its fiduciary duty. They are therefore not considered at this point. In addition, only Lawrence's adequately-explained arguments are addressed.
A. Motorola Failed to Exercise Discretion
If an administrator completely declines to exercise discretionary authority by not making a decision on a claim, then de novo review may be appropriate. See Seman v. FMC Corp. Ret. Plan for Hourly Empls, 334 F.3d 728, 733-34 (8th Cir. 2003) (administrator failed to review an appeal from an initial denial even though claimant submitted additional medical evidence on appeal). In addition, if an administrator fails to reach an issue, de novo review will also apply to the determination of that issue. See Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1327-28 (8th Cir. 1995). In Mansker, the administrator had denied Mansker's claim, finding that Mansker's injury arose out of his employment, which disqualified him under the policy, and therefore did not reach the issue of reasonableness and customariness of the medical expenses. Id. at 1325. The district court concluded that (1) Mansker's injury did not arise out of his employment and (2) the medical expenses submitted by Mansker were reasonable and customary. Id. TMG challenged the district court's decision to determine the reasonableness and customariness of the medical expenses when the administrator had discretion and had not decided that issue. Id. at 1327-28. The court rejected TMG's argument, holding that when an administrator does not reach an issue, a district court should use de novo review to decide that issue — in that case, the reasonableness and customariness of the medical expenses. Id.
While Lawrence attempts to couch his argument as one demonstrating Motorola's failure to exercise discretion, the only case that Lawrence cites is Mansker, which, as discussed above, is inapposite. Lawrence is not arguing that Motorola failed to decide his claim or failed to determine an issue. Rather, Lawrence is claiming that some of Motorola's internal policies resulted in an inadequate review of his claim. Thus, Lawrence has failed to establish the applicability of Mansker to the facts of his case.
Lawrence does not cite any cases nor argue that Motorola improperly delegated its authority to an outside entity.
B. Motorola's Apparent Conflict of Interest
Lawrence argues that the fact that Motorola is both the decision-maker and the payor establishes a conflict of interest. That is not the law in this Circuit. See Atwood, 45 F.3d at 1323 (holding that the mere fact that an administrator is both the decision-maker and the payor, creating an inherent and apparent conflict of interest, is insufficient to create a conflict of interest that would alter the standard of review).
C. ERISA Violations
Lawrence argues that Motorola violated ERISA by (1) not turning over Lawrence's administrative record; (2) failing adequately to inform Lawrence how to perfect his claim; and (3) permitting a Motorola employee to be involved in both the initial denial and the appellate denial.
Violating ERISA's procedural regulations may justify a non-deferential standard of review. See Gatti v. Reliance Std. Life Ins. Co., 415 F.3d 978, 984 (9th Cir. 2005); see also Jebian v. Hewlett-Packard Co. Emple. Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1108 (9th Cir. 2003). However, merely establishing that an employer violated ERISA will not alter the standard of review. Rather, the Gatti court held that "[p]rocedural violations of ERISA do not alter the standard of review unless those violations are so flagrant as to alter the substantive relationship between the employer and the employee, thereby causing the beneficiary substantive harm." Gatti, 415 F.3d at 985.
1. Failure to Turn Over Records
The Regulations provide that a benefit plan must establish an appeal procedure that enables claimants to have a "reasonable opportunity to appeal an adverse benefit determination." 29 CFR 2560.503-1(h). In order to provide a claimant with a full and fair hearing, the administrator must provide the claimant with "all documents, records, and other information relevant to the claimant's claim for benefits." 29 CFR 2560.503-1(h)(2)(iii). A document is "relevant" if it was "relied upon in making the benefit determination" or "[w]as submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination." 29 CFR 2560.503-1(m)(8).
On March 13, 2003, following the initial denial, Lawrence asked for his administrative record. Doc. # 51, Appendix 1. On April 3, 2002, Motorola provided Lawrence with an incomplete record. Doc. # 51, Appendix 1A. On July 11, 2003, Lawrence again asked Motorola for a complete administrative record. Doc. # 51, Appendix 1A. While Lawrence's counsel averred that he did not receive certain portions of the administrative record, Doc. # 51, Appendix 1 (providing a list of all the pages that Motorola failed to turn over to Lawrence), at oral argument, Lawrence failed to confirm which "relevant" documents he did not receive. When asked whether Lawrence had received the medical opinions which Motorola had relied on to make its January 30, 2003 decision to deny Lawrence's disability request, Lawrence stated that he did not know.
Motorola asserts that its failure to turn over a complete administrative record did not result in substantive harm to Lawrence. In his brief, Lawrence never clearly discussed Gatti or what substantive harm he suffered as a result of Motorola's failure to provide a complete administrative record. Moreover, when provided the opportunity at oral argument, Lawrence failed to argue convincingly that he was substantively harmed. Instead, Lawrence merely asserted, without explanation, that he was substantively harmed because he did not receive the IME reports which occurred during the appeals period. Such an assertion without more is insufficient to establish substantive harm under Gatti.
Lawrence also cites a document in the administrative record as additional evidence demonstrating that Motorola willfully violated ERISA by trying to prevent the disclosure of certain documents. Lawrence argues that the document was classified as "confidential" and contained the phrase "not to release to Robert Lawrence." The cited document, Tr. at 443, stated: "Do NOT release to client." Despite Lawrence's assertion to the contrary, there is no indication that Lawrence was the "client." However, even assuming that this document demonstrates that Motorola failed to provide Lawrence with a complete administrative record, Lawrence still fails to argue how he was substantively harmed.
Therefore, as discussed above, while Motorola may have violated ERISA by failing to provide Lawrence with a complete administrative record, Lawrence has failed to establish that he suffered any substantive harm as a result of Motorola's violation of ERISA.
At the merits stage of the inquiry, Lawrence may be entitled to monetary relief under 29 U.S.C. § 1132(c)(1) (awarding one hundred dollars per day to the beneficiary when the administrator fails to furnish documents within thirty days of receiving the request).
2. Denial Notifications
A plan administrator must provide in its notification denying benefits: (1) the specific reasons for the adverse benefit determination; (2) a reference to the specific plan provisions on which the determination is based; (3) a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and (4) a description of the plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under section 502(a) of the Act following an adverse benefit determination on review. 29 CFR 2560.503-1(g).
Lawrence has failed to explain how any alleged ERISA violations in Motorola's pre-January 15, 2003 letters caused him substantive harm. After all, Lawrence received disability benefits until January 14, 2003. It was on January 15, 2003, that Motorola denied Lawrence's claim because of a lack of objective medical evidence and Lawrence's failure to attend an IME. Tr. at 205-07. In that letter, Motorola stated its reasons for denying Lawrence's benefits claim, cited the relevant provisions of the plan, explained that Lawrence needed to submit objective medical evidence, and provided a description of the Appeals Process. Lawrence's argument that Motorola's denial letter failed to comport with 29 CFR 2560.503-1(g) is groundless. Lawrence does not argue that any other post-January 15, 2003 letters failed to comport with the Regulations.
Lawrence states that he did not receive benefits between September 12, 2002 and January 14, 2003, but Motorola submitted evidence establishing that Lawrence received payments during that period. See Doc. 42, Exhibit C and Exhibit 1.
3. Cindy Myers's Role
Lawrence argues that Cindy Myers's involvement in Lawrence's claim violated 29 CFR § 2560.503-1(h)(3)(ii). This Regulation provides that the person determining an appeal cannot be the person who made the initial adverse determination that is the subject of the appeal.
This provision does not apply to Myers. While she processes claims and appeals for Motorola, she is not responsible for making claim determinations. DSOF at ¶ 9. Nothing in the record undermines this conclusion.
D. Conflict of Interest
Lawrence argues that Motorola acted under a conflict of interest when deciding his benefit request. In this vein, Lawrence argues (1) that Motorola failed to follow its internal procedures, (2) he was improperly required to submit objective medical evidence, and (3) Motorola's practice of approving and denying benefits demonstrated that it was intent on denying Lawrence's claim.
1. Failure to Follow Internal Protocol
On September 11, 2003, Dr. Prince examined Lawrence and concluded that he did not suffer from a disabling mental condition but that Lawrence's chronic pain appeared to be physically disabling. DSOF at ¶ 27. Following Dr. Prince's report, Mutual of Omaha recommended that Motorola pay Lawrence disability until he went to his next IME. PSOF at ¶ 28. Specifically, the Mutual of Ohio employee stated: "I would reinstate his benefits, based on a physical disability and set him up for a physical exam in the interim. Please advise if you agree." In a subsequent e-mail, the employee stated: "To give the person the benefit of the doubt, I would approve him (conditionally if you can) based on a physical disability and immediately proceed with a physical IME." Tr. at 131. Motorola declined to do so.
Lawrence argues that Motorola violated established protocol by rejecting Mutual of Omaha's recommendation that Lawrence's disability benefits be extended through the October IME. In Defendants' Response to Plaintiff's Statement of Facts, Defendant admitted:
Defendant contracted with CORE and later Mutual of Omaha to assist with disability determinations. Pursuant to Defendant's confidential policies and procedures related to Mutual of Omaha, Mutual of Omaha is to determine whether it can certify disability for eligible beneficiaries. If Mutual of Omaha cannot certify disability, then the matter is referred to Motorola for disability determination purposes (Appendix 4, p. 01179).
DRTPSOF at 16-17 (referring to PSOF at ¶ 26). Thus, the question is whether these e-mail recommendations constitute certification of Lawrence's disability. Given the equivocal language, Mutual of Omaha was not certifying the presence of a disability. Motorola therefore did not violate the agreement with Mutual of Omaha.
2. Requirement for Objective Medical Evidence
Lawrence argues that Motorola improperly required objective medical evidence to demonstrate disability because (1) one of his disabling conditions — chronic pain — could not be demonstrated by objective medical evidence and (2) the word "may" allows the Administrator to apply the Plan in an inconsistent manner. The Plan provides that the "Plan Administrator, in its sole and complete discretion, may require objective evidence of a Participant's Disability. . . ." The Plan explicitly excludes a number of illnesses from long-term disability coverage, but there is no provision excluding employees who have pain beyond what objective medical evidence can substantiate. Tr. at 1077-78.
Irrespective of whether chronic pain cannot always be established by objective medical evidence, the Plan provides the administrator with the discretion to require objective medical evidence in some situations. Even though Lawrence may be unhappy that the Administrator required objective medical evidence in his case, the language of the Plan provides the Administrator with the ability to do so. Therefore, the fact that the Administrator required objective medical evidence does not evince a conflict of interest.
Lawrence has not cited any cases supporting the proposition that requiring objective medical evidence, when the plan plainly allows for the requirement of such evidence, demonstrates a conflict of interest. However, the reliance on objective medical evidence and the failure to define objective medical evidence may be relevant to whether Motorola erroneously decided Lawrence's claim. See Duncan v. Continental Cas. Co., 1997 U.S. Dist. LEXIS 1582, *18 (N.D. Cal. 1997) ("Continental's denial of Duncan's policy was based on a limiting definition ("objective medical evidence") that neither appeared in nor was defined by the policy.").
3. Motorola's "Flip-Flopping"
Lawrence argues that Motorola's decisions to issue benefits and then discontinue benefits demonstrates Motorola's conflict of interest. Motorola asserts that Lawrence failed to qualify for long-term disability because he failed to provide documentation of a continuing disability. In order to receive disability benefits, the Plan requires:
During this time of disability the participant cannot be engaged in his or her usual and customary occupation, and must be under the regular care and attendance (no less than one visit in a consecutive thirty (30) day period unless otherwise waived by the Plan Administrator) of a Physician qualified to treat the disabling condition and to determine functional abilities of the Participant as it applies to his or her occupation and activities of daily living.
A.R. at 1050.
As stated above, Lawrence initially received long-term benefits between October 2000 and December 2000. In early 2001, Motorola denied Lawrence's claim for long-term disability benefits because Dr. Siegel, a CORE physician, spoke with Dr. Wolfley, Lawrence's treating physician, and concluded that Lawrence was not disabled. DSOF at ¶ 17. In his report, Dr. Siegel noted that Dr. Wolfley was "unable to support total disability from any occupation at this time." Tr. at 444. Lawrence appealed the denial, and submitted the opinions of Dr. Wolfley, Dr. Goodman, and Dr. Gough, each of whom opined that Lawrence was disabled. On March 8, 2002, Motorola reinstated Lawrence's benefits. TR. at 671.
On January 14, 2002, Motorola again denied Lawrence's claim. Specifically, Motorola stated that Lawrence had failed to submit documentation establishing his continuing disability. DSOF at ¶ 18. Motorola specified the procedures Lawrence needed to follow for reinstatement. Tr. at 547. On January 21, 2002, Motorola reinstated Lawrence's benefits through August 8, 2002, because Lawrence had provided Motorola with documentation of continuing disability. Tr. at 540.
On September 19, 2004, Motorola sent Lawrence a letter stating that, based on clinical information from Dr. Gough, Lawrence's long-term disability benefits would be extended from September 1, 2002 to September 11, 2002. On September 24, 2002, Motorola sent Lawrence a letter stating that in order to continue receiving long-term disability benefits beyond September 11, 2002, Lawrence needed to fill out two forms and also submit documentation from his doctors. Tr. at 494. On November 12, 2002, Motorola approved Lawrence's claim from September 11, 2000 until December 1, 2002. Lawrence never received a letter that his disability was extended beyond the December 1, 2002 date. However, on January 15, 2003, Motorola denied Lawrence's claim based on a review of the records submitted to the administrator and Lawrence's failure to attend two scheduled IMEs.
Whether the final denial was an abuse of discretion on the merits of the claim is a different matter, but this history of actions does not show a conflict of interest. There is no evidence establishing that Motorola improperly denied and reinstated Lawrence's benefits. At all times, Motorola appeared to have reasons supporting its decisions. Both the January 2001 and January 2002 benefit denials were based on Lawrence's failure to submit medical documentation and a conversation that a CORE doctor had with one of Lawrence's treating physician. On September 24, 2002, Motorola asked Lawrence to establish disability. There was nothing improper about this request, as Motorola was entitled to request that Lawrence continue to establish a disability. Lawrence then received benefits until January 14, 2003.
IV. Conclusion
Lawrence has failed to demonstrate that Motorola breached its fiduciary duty and that de novo review should apply. Abuse of discretion is therefore the proper level of review for determining whether Motorola erred in concluding that Lawrence was not disabled.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Review De Novo, Doc. # 36, is denied.
IT IS FURTHER ORDERED that the parties brief the merits of the case under the abuse of discretion standard of review, submitting separate statements of fact following the procedure prescribed in LRCiv 56.1(a), pursuant to the following schedule:
1. By June 16, 2006: Plaintiff's opening brief.
2. By July 17, 2006: Defendant's answering brief.
3. By August 1, 2006: Plaintiff's reply brief.
The court does not contemplate extending this schedule.
IT IS FURTHER ORDERED setting oral argument on the merits of the case on August 18, 2006, at 1:30 p.m.