Delgado v. United States

Slip Op. 07-70

UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
MIGUEL A. DELGADO, :
:
Plaintiff, :
: Before: MUSGRAVE, Judge
v. :
: Court No. 06-00030
UNITED STATES, :
:
Defendant. :
____________________________________:

MEMORANDUM OPINION AND ORDER

[Plaintiff alleged inadequate notification of agency decision. The court found that agency action
might not be proper because statute provided that a “written determination” was to be “issued” at
the conclusion of the administrative process and it was not clear whether the agency had done so.
Matter remanded for further proceedings.]

Dated: May 11, 2007

The Mooney Law Firm (Neil B. Mooney) for the plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney In Charge,
International Trade Field Office, Commercial Litigation Branch, United States Department of Justice
(Marcella Powell); Ilena Pattie, Office of the Associate Chief Counsel, United States Customs and
Border Protection, of counsel, for the defendant.

By his complaint Miguel A. Delgado (“Delgado”) alleges that United States Customs and

Border Protection1 (“Customs” or “CBP”) improperly determined that his customhouse brokers

license (“License”) should be revoked. Delgado raises four main issues in support of his position,

arguing that: (1) the Administrative Law Judge (“ALJ”) who presided at the administrative hearing

1
This agency’s name was officially changed effective March 31, 2007. See Name
Change From the Bureau of Immigration and Customs Enforcement to U.S. Immigration and
Customs Enforcement, and the Bureau of Customs and Border Protection to U.S. Customs and
Border Protection, 72 Fed. Reg. 20,131 (Dep’t Homeland Security, Apr. 17, 2007).
Court No. 06-00030 Page 2

(“Hearing”) improperly applied the doctrine of collateral estoppel; (2) the ALJ’s determination that

it was proper to revoke Delgado’s License because Delgado violated a Customs statute or regulation

by making false or misleading statements was in error; (3) the ALJ’s determination that it was proper

to revoke Delgado’s License because Delgado was convicted of a felony that was based on either:

(a) the importation or exportation of merchandise or (b) the conduct of Delgado’s customs business

was in error; and (4) that the letter informing Delgado that his License was being revoked

insufficiently notified him of the facts and reasons underlying Customs’s determination.2

Background

On September 26, 1989, Delgado was issued customhouse brokers license 11634. Compl.

at para. 2. In 1990, Delgado formed a corporation, Lancer International (“Lancer”), which he ran

for approximately ten years. Tr. at 161.

Some time prior to May 1997, questions were raised about certain shipments of merchandise

handled by Lancer. See United States v. Delgado, 321 F.3d 1338, 1341 (11th Cir. 2003)

(“Delgado”). Specifically, Customs inspectors found that shipments arriving in Port Everglades,

Florida that were described as containing “foodstuffs,” contained both foodstuffs and liquor. See

tr. at 116. Because of this seeming irregularity, Customs and the Bureau of Alcohol, Tobacco,

Firearms and Explosives (“ATF”) initiated an investigation. Tr. at 116–17.

On August 24, 2000, at the conclusion of the investigation, Delgado was indicted by a federal

grand jury in the Southern District of Florida on twenty-nine felony counts of being a co-conspirator

in a scheme to introduce liquor into United States commerce without the payment of excise taxes

2
Delgado also requests the award of attorney fees and costs pursuant to the Equal
Access to Justice Act. See compl. paras. 45–46 (citing 28 U.S.C. § 2412(d)(1)(A)).
Court No. 06-00030 Page 3

thereon. See United States of America v. Deepak Kumar et al., Ct. No. 00-0682 (Aug. 24, 2000),

R. at 173 (citing 26 U.S.C. §§ 5601(a)(11), (12), 5608(b); 18 U.S.C. §§ 2, 371). In early 2001,

Delgado was tried by a jury and convicted of twenty-eight of the twenty-nine counts. See United

States v. Miguel Delgado, Ct. No. 00-0682, (Sept. 6, 2001), R. at 165 (“Judgment”). At trial it was

affirmatively established that Delgado was aware of, and participated in, the conspiracy. Tr. at

252–53; Judgment, Count One, R. at 165 (citing 18 U.S.C. § 371), Delgado, 321 F.3d at 1346

(“Contrary to what Delgado claims, the jury had sufficient evidence to find him guilty of the

conspiracy.”). At no point was Delgado accused, indicted, or convicted of violating any law or

regulation enforced by Customs3. In September, Delgado was sentenced to twenty-seven months in

prison and ordered to pay restitution. Judgment, R. at 168–69, 171. Delgado timely appealed the

trial Court’s decision. See Delgado, 321 F.3d at 1343. After his release, Delgado resumed actively

working in the customs field with the knowledge and oversight of the District Court. Tr. at 215; see

also Letter from United States District Court / District of Southern Florida / Probation Office of

6/18/04, R. at 113.

On August 28, 2002, the Acting Port Director for the Miami Service Port sent a memo to the

Associate Chief Counsel recommending that Delgado’s License be revoked. See Recommendation

for Revocation of Customhouse Broker Miguel A. Delgado’s License, R. at 267. The memo stated

that “[t]he proposal for revocation of this license (for cause) is under consideration in accordance

with 19 CFR 111.53 (b)(1). As per guidelines provided by the Office of Field Operations, your

review and recommendation are requested.” Id.

3
This is possibly so because at some point prior to Delgado’s indictment Customs
dropped out of the investigation. See tr. at 117.
Court No. 06-00030 Page 4

Some time in late 2002 or early 2003, Delgado filed his “Triennial Status Report” with

Customs. See R. at 272. In this document, Delgado responded in the affirmative to a question

requesting whether he had “engaged in any conduct that could constitute grounds for suspension or

revocation under Title 111.53? [sic] (i.e. convicted of a felony).” Id.

On February 20, 2003, the Court of Appeals for the 11th Circuit issued its opinion on

Delgado’s appeal. See Delgado, 321 F.3d 1338. The appellate Court affirmed Delgado’s conviction

on all twenty-eight counts and the trial Court’s “decision in all respects.” Id. at 1349.

Some time in mid-2003, “concerns” were raised about Delgado’s continuing active

involvement in the customs field. See Informed Compliance Contact Sheet (“Contact Sheet”) #1 of

3/24/04, R. at 240; Contact Sheet #2 of 3/24/04, id. at 2414. Contact Sheet #1 memorialized that,

“on or about August 2003,” an unidentified broker approached Customs and inquired as to why it

would “allow a person to operate as a broker after being convicted.” R. at 240. The unidentified

broker complained that Delgado “was pulling clients he had under his old filer code . . . [and the

unidentified broker] wanted to know if Customs was doing anything about this matter.” Id. Contact

Sheet #2 memorialized that, on September 30, 2003, an unidentified broker5 spoke to a Customs

representative “about his and the trade’s concern that Miguel Delgado, having been convicted and

arrested was still allowed to operate as a broker. [The unidentified broker] was concerned that

Customs would allow [a broker] to continue to operate in this type of situation.” R. at 241.

4
It is not clear why these “records” were not filed contemporaneously with the events
they purport to describe. Indeed, they were apparently generated several weeks after Customs set
into motion the process to revoke Delgado’s License.
5
Due to redactions, it is unclear whether the second broker is the same person as the
first broker.
Court No. 06-00030 Page 5

On March 9, the Port Director for the Miami Service Port sent Delgado a “Notice and

Statement of Charges.” See R. at 153 (“Statement of Charges”). The Statement of Charges informed

Delgado that his License might be revoked pursuant to 19 C.F.R. §§ 111.53(c) & 111.32 (violating

Customs law or regulation by filing false documentation), 19 C.F.R. § 111.53(b) (convicted of a

felony either involving importation or exportation of merchandise or “arising out of” customs

business), or 19 C.F.R. § 111.53(d) (aiding and abetting violation of Customs law). Id. at 153–546.

In addition, the Statement of Charges informed Delgado that 5 U.S.C. §§ 554 and 558 “are

applicable to formal proceedings,” that he could be represented by counsel, and that the Hearing

would be held on May 18, 2004. Id. at 159, 161; see also Order of 3/3/04, R. at 145, 147.

On, May 18, the Hearing was held in Miami. See generally, Tr. of Proceedings, Vols. I &

II. At the Hearing, the ALJ took testimony from various Customs and ATF officials, and several

other people who testified as to Delgado’s good character. See generally Transcripts.

On December 17, the ALJ issued the recommendation as to the revocation of Delgado’s

License. See Recommended Decision and Order, R. at 18 (“Recommended Decision”). This

document recited the various elements relevant to the ALJ’s determination. In summary, the ALJ

stated that:

IT IS HELD that by a preponderance of the evidence
contained in the record of this hearing supports license revocation as
a matter of law.

6
While it is not clear to which year’s regulations the Statement of Charges refers, the
court notes that the regulations relevant to this discussion were last revised 2000. See Rules and
Regulations, 65 Fed. Reg. 13,880, 13,898–94 (Dep’t Treas. Mar. 15, 2000) (final rule). Since that
time, the regulation’s language has remained unchanged. Compare 19 C.F.R. §§ 111.32, .53–.81
(2000) with 19 C.F.R. §§ 111.32, .53–.81 (2007)
Court No. 06-00030 Page 6

IT IS RECOMMENDED that the facts warranting revocation
be seriously reconsidered in light of the circumstances of Miguel A.
Delgado being permitted by a United States District Court to continue
in a licensed Customs business, and in further light of the good
character testimony . . . , and the fact that there were no violations of
the fiduciary duty of accounting owed by Mr. Delgado to customer-
importers, and no customer was injured.

Recommended Dec., R. at 34. On May 31, 2004, the Recommended Decision and a certified copy

of the Hearing record were sent to the Department of Homeland Security (“DHS”). See Certification

of Record, R. at 9, 13.

On August 2, 2005, the Acting Director of Cargo and Transportation Policy, Office of

Planning and Policy, Border and Transportation Security Directorate (“BTS”) sent a memorandum

to the Acting Assistant Secretary for Policy and Planning, BTS (“Acting Assistant Secretary”). See

R. at 3 (“Decision Memorandum”). The Decision Memorandum requested that the Acting Assistant

Secretary affirm revocation of Delgado’s License. See id. On that same day, the Acting Assistant

Secretary sent a letter to the Commissioner of CBP. See, R. at 1 (“Action Letter”). In the Action

Letter, the Acting Assistant Secretary notified the Commissioner of CBP that BTS was affirming

“CBP’s revocation of Mr. Delgado’s license.” R. at 2. The letter requested the Commissioner

“ensure that CBP takes the appropriate steps to inform Mr. Delgado of this decision pursuant to 19

CFR 111.74.” R. at 2.

On December 3, the Assistant Commissioner of the Office of Field Operations for CBP sent

Delgado formal notification that his License was being revoked. See compl. ex. A (“Notification

Letter”). The Notification Letter stated, in relevant part, that “[y]ou are hereby notified that the U.S.

Department of Homeland Security has affirmed U.S. Customs and Border Protection’s (CBP)

decision to revoke your Customshouse brokers license.” Id.
Court No. 06-00030 Page 7

Thereafter, on January 27, 2006, Delgado commenced this action.

Jurisdiction and Standard of Review

Customs has the authority to initiate a proceeding to suspend or revoke a customhouse

brokers license pursuant to 19 U.S.C. § 1641(d)(2)(B) (2000). This Court has exclusive jurisdiction

to review a determination to revoke a customhouse brokers license pursuant to 28 U.S.C. §

1581(g)(2) (2000). See Shiepe v. United States, 23 CIT 66, 72, 36 F. Supp. 2d, 402, 408 (1999)

(citing 28 U.S.C. § 1581(g)(2) (1988)). The scope of the Court’s review of such a proceeding is set

out in 28 U.S.C. § 2640(a)(5) (2000), which provides for “Civil actions commenced to review any

decision of the Secretary of the Treasury under section [1641], with the exception of decisions under

section [1641(d)(2)(B)], which shall be governed by subdivision (d) of this section.” The court

pauses here.

As originally enacted, “subdivision (d)” read as follows: “In any civil action not specified in

this section, the Court of International Trade shall review the matter as provided in section 706 of

title 5.” 28 U.S.C. § 2640(d) (1976 Supp. V). In other words, the statute directly tied this Court’s

review of determinations made by the Secretary of Treasury to provisions of Title 5—the

Administrative Procedure Act (“APA”). In 1987, 19 U.S.C. § 1641 and 28 U.S.C. § 2640 were

greatly revised. First, in section 1641, Congress added language defining the term “customs

business.” See 19 U.S.C. § 1641(a)(2) (1982 Supp. V). Next, Congress outlined the specific types

of disciplinary procedures Customs could initiate against customs brokers, including the imposition

of monetary penalties (19 U.S.C. § 1641(d)(2)(A)), and the suspension or revocation of licenses (19

U.S.C. § 1641(d)(2)(B)). In addition to these changes, the “scope and standard of review” for this

Court’s review of matters concerning Customs’s disciplinary procedures was revised. See 28 U.S.C.
Court No. 06-00030 Page 8

§ 2640(a)(5) (1982 Supp. V). Specifically, this subdivision was modified to provide that

determinations made by the Agency were to be reviewed on the record made before the Court “with

the exception of decisions under section [1641(d)(2)(B)], which shall be governed by subdivision

(d) of this section.” Id. At that time, “subdivision (d)” continued to firmly point to the APA. See

id.; see also Shiepe, 23 CIT at 72, 36 F. Supp. 2d at 408 (citing 28 U.S.C. §§ 2640(a)(5), (d) (1988)).

In 1993, 28 U.S.C. § 2640(a) was again amended. At that time, Congress re-wrote the statute

thusly:

(4) Section 2640 is amended—

(A) by redesignating subsection (d) as subsection (e);

and

(B) by inserting after subsection (c) the following new
subsection:

“(d) In any civil action commenced to
review any order or decision of the
Customs Service under section 499(b)
of the Tariff Act of 1930, the court
shall review the action on the basis of
the record before the Customs Service
at the time of issuing such decision or
order.”. [sic]

P.L. 103-182 Sec. 684 (a)(4), 107 Stat. 2219; see 28 U.S.C. § 2640(d) (1988 Supp. V). As stated

in the legislative history:

Section 684 amends 28 U.S.C. 2640 to provide that in any civil action
commenced to review an order or decision by Customs with respect
to the denial, suspension or revocation of the accreditation of a
private laboratory, the court shall review the action on the basis of the
record before Customs at the time of issuing such decision or order.
Court No. 06-00030 Page 9

North Am. Free Trade Agreement and Implementation Act, 1993 U.S.C.A.A.N. 2552, 2707. In other

words, Congress provided a new scope of review for determinations made by the Secretary of

Treasury related to the accreditation of private laboratories in “new” subdivision 2640(d), and moved

the “residual” APA scope of review to “new” subdivision 2640(e). See 28 U.S.C. §§ 2640(d), (e)

(1988 Supp. V). No other part of section 2640 was modified—including subdivision (a)(5), which

continued to provide that “decisions under section [1641(d)(2)(B)] . . . shall be governed by

subdivision (d) of this section.” 28 U.S.C. § 2640(a)(5) (1988 Supp. V). The upshot of this

Congressional legerdemain is that now, instead of the statute firmly basing this Court’s scope of

review for actions initiated under 19 U.S.C. 1641(d)(2)(B) on the APA, this Court is directed that

the scope of its review is informed by reference to the “denial, suspension or revocation of the

accreditations of a private laboratory.” See 28 U.S.C. § 2640(d), (e) (2006). In revising the statute

thusly, Congress has created a patent statutory absurdity. Specifically, the statute now mandates that

the scope of this Court’s review of a determination to suspend or revoke a customhouse brokers

license is to be based on the record made before Customs in a proceeding to suspend or revoke the

accreditation of a private laboratory. This court has stated that, “[w]hen the literal words of a statute

create an absurd result, such a literal interpretation must be rejected.” Koyo Corp. of U.S.A. v.

United States, 29 CIT __, __, 403 F. Supp. 2d 1305, 1310 (2005) (citing Holy Trinity Church v.

United States, 143 U.S. 457, 460 (1892)). Here, because a literal reading of the statute creates an

absurd result, the court, therefore, rejects the plain meaning of the statute and finds that subdivision

(e) sets out the proper scope of review for this action. see Kenny v. Snow, 401 F.3d 1359, 1361 (Fed.

Cir. 2005) (citing 5 U.S.C. § 706 when reviewing denial of a customhouse brokers license). This

being so, the APA provides, in relevant part:
Court No. 06-00030 Page 10

To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The reviewing court
shall— . . .

(2) hold unlawful and set aside agency action,
findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law . . . .

5 U.S.C. § 706. Furthermore, when reviewing Customs’s determinations to revoke a customhouse

brokers license, “[t]he findings of the Secretary as to the facts, if supported by substantial evidence,

shall be conclusive.” 19 U.S.C. § 1641(e)(3). See UPS Customhouse Brokerage, Inc. v. United

States, 30 CIT __, __, 442 F. Supp. 2d 1290, 1304 (2006). Finally, the Court may not consider

arguments that were not raised before the agency, unless reasonable grounds existed for failing to

do so. See 19 U.S.C. § 1641(e)(2).

While Delgado raises several arguments in support of his case, the court begins its analysis

by reviewing whether Customs’s administrative procedures were proper. Specifically, the court

must address Delgado’s claim that the Notification Letter did not sufficiently apprise him of

Customs’s final decision in this matter.

Discussion

By statute, it is provided, in relevant part, that: “Following the conclusion of the hearing, the

hearing officer shall transmit promptly the record of the hearing along with the findings of fact and

recommendations to the Secretary for decision. The Secretary will issue a written decision, based
Court No. 06-00030 Page 11

solely on the record, setting forth the findings of fact and the reasons for the decision.” 19 U.S.C.

§ 1641(d)(2)(b). Furthermore, regulations provide, in relevant part:

If the Secretary of the Treasury, in the exercise of his discretion and
based solely on the record, issues an order suspending a broker’s
license or permit for a specified period of time or revoking a broker’s
license or permit . . . the Assistant Commissioner will promptly
provide written notification of the order to the broker . . . .

19 C.F.R. § 111.74. Thus, the process contemplates the following: (1) that the “hearing officer” will,

at the conclusion of a hearing, send the record of that hearing and a recommended decision to the

Assistant Commissioner; (2) those materials will be reviewed, culminating in the issuance of a

written decision that sets out the findings of fact and reasons for the decision; and finally, (3) notice

that the customhouse brokers license has been revoked will be sent to a broker. Here, the Record

shows the following. First, the ALJ, at the conclusion of the Hearing, submitted the Recommended

Decision and record of the proceeding to the DHS Office of General Counsel. See Certification of

Record, R. at 13. Second, a component of DHS (the BHS) reviewed the record and the

Recommended Decision. See, generally, Dec. Memo., R. at 3. In the Decision Memorandum, BTS

explained that revocation of Delgado’s License was warranted and set out the facts and reasoning

underlying that determination. Id. The Decision Memorandum stated that the Agency took into

consideration the good character evidence attested to at the Hearing and explained that revocation

was still warranted because “[t]hese facts do not negate the actuality that [Delgado] was convicted

on 28 felony counts that involved importation or exportation of liquor, and that arose out of the

conduct of his Customs business, and the attendant harm to the public that Congress has found in

making such conduct criminal.” Id. at 5. BTS then sent a letter to the Assistant Secretary. See

Action Letter, R. at 1. In this document, BTS summarized its determination, stated that it was
Court No. 06-00030 Page 12

affirming revocation of Delgado’s License, and requested that “CBP takes the appropriate steps to

inform Mr. Delgado of this decision pursuant to 19 CFR 111.74.” R. at 7. Finally, DHS sent

Delgado the Notification Letter. In this letter DHS stated that “[y]ou are hereby notified that the U.S.

Department of Homeland Security has affirmed U.S. Customs and Border Protection’s (CBP)

decision to revoke your Customshouse brokers license.” Notification Letter.

Delgado contends that the Notification Letter “fails to address either the factual basis or the

reasoning underlying the determination of the Department of Homeland Security and the CBP to

revoke Delgado’s Customs broker license. Agency action will only be upheld on [the] basis

articulated by [the] agency.” Mem. in Supp. of Pl.’s Rule 56.1 (a) Mot. for J. on the Agency R.

(“Pl.’s Mem.”) at 5 (citing SEC v. Chenery Corp., 318 U.S. 80, 95 (1943)). Delgado argues that,

here, the Notification Letter was inadequate because he only “received a letter containing one

sentence declaring revocation of his License without a reason provided, and two sentences

mentioning the right to appeal.” Id. at 5 (citing Notification Letter). Customs argues that 19 C.F.R.

§ 111.74

requires only that the Assistant Commissioner notify the broker that
the license has been revoked. This is exactly what was stated in the
revocation letter that Mr. Delgado received from CBP. Furthermore,
Mr. Delgado was always aware of the reasons underlying CBP’s
decision to revoke his license. Indeed, Mr. Delgado received a Notice
and Statement of Charges, which specified the relevant regulatory
provisions and factual bases upon which CBP sought to revoke his
license.

Def.’s Mem. at 7–8 (citing Statement of Charges, R. at 153). In response, Delgado contends that the

Notification Letter

contains no reason whatsoever for the revocation, and does not
address new issues arising at the hearing. It does not explain how
Court No. 06-00030 Page 13

violating ATF rules amounts to violations of CBP regulations, does
not explain why DHS/CBP ignored Judge Sippel’s recommendation
to “seriously reconsider” revocation, does not state why a monetary
penalty or license suspension was inadequate — it does not explain
a thing.

Pl.’s Reply at 6 (Notification Letter). For the following reasons the court allows that the Agency’s

procedure may not be proper in this respect.

As an initial matter, a review of the Notification Letter shows that it does not, as pointed out

by Delgado, contain any factual findings or reasoning that support Customs’s determination to

revoke Delgado’s License. As argued by defendant, however, there is nothing in the regulations that

require any such notification to include a full recitation of Customs’s reasoning. The question

becomes, then, whether Delgado should have been somehow apprised of the underpinnings of

Customs’s determination. As noted above, by statute Customs must “issue a written decision, based

solely on the record, setting forth the findings of fact and the reasons for the decision.” 19 U.S.C.

§ 1641(d)(2)(B). Here, the court understands that Delgado was not issued a document that contained

Customs’s reasoning (for example, the Action Letter, the Decision Memorandum, or some other

“written decision”). The court considers this to be a plausible scenario as the Action Letter and

Decision Memorandum appear to be internal agency memoranda, see R. at 1, 3, and there is no other

document on the Record that could otherwise be construed as being a “written decision” that was

issued to Delgado. If Delgado did not receive notice of the facts and reasoning underlying

Customs’s final determination, the question, then, is whether Customs has fully complied with its

statutory mandate, and the court cannot find, at this time, that it has. This is so because, assuming

that the Action Letter and the Decision Memorandum fulfill in principle the functions of the “order”

and “written decision,” it would seem that Customs must “issue” one or both of these documents (or
Court No. 06-00030 Page 14

some other “written decision”) to an affected party—and here that was not done. Conversely, if it

is Customs’s position that the statute does not require it to “issue” a “written decision” to an affected

party, it nowhere explains why it was not necessary to do so.7 Thus, the court must remand this

matter so that Customs may explain this process further.

Conclusion

This matter is remanded so that defendant may file a report with the court indicating whether

either: (1) pursuant to 19 U.S.C. § 1641(d)(2)(B), Delgado should have been issued a written

decision that contained the facts and reasoning for revoking his License; or (2) why the statute does

not mandate that Customs issue Delgado such a document. Defendant shall file this report by May

25, 2007. If Customs determines that Delgado should have been issued a written decision, it shall

issue one to him by May 25, 2007, and Delgado may file a brief addressing that written decision by

June 15, 2007; defendant may file a response to any such brief by June 29, 2007; Delgado may reply

to any such response by July 13, 2007. If Customs determines that it need not issue a written

determination to Delgado, Delgado may submit a brief addressing that issue by June 15, 2007;

7
Fundamental principles of fairness would seem to dictate that a broker must be
provided with such information. Defendant’s position that Delgado was “always aware of the
reasons underlying CBP’s decision to revoke his license” at the time Delgado initiated this action
rings hollow because Customs’s determinations after the Hearing were not based solely on the facts
that formed the basis of the Statement of Charges. Indeed, Customs’s determinations after the
Hearing took into account a broader range of issues, including the conspiracy, Delgado’s actions
after the conspiracy, and the good character testimony attested to at the Hearing.
Court No. 06-00030 Page 15

defendant may respond to any such brief by June 29, 2007; Delgado may reply to any such response

by July 13, 2007. All filings shall not exceed five pages in length.

SO ORDERED

/s/ R. Kenton Musgrave
R. KENTON MUSGRAVE, JUDGE

Dated: May 11, 2007
New York, New York