ELLEN SEGAL HUVELLE, District Judge.
The National Automobile Dealers Association ("NADA") challenges the Federal
In 2003, Congress enacted the Fair and Accurate Credit Transactions Act of 2003 ("FACT Act" or "Act"), Pub.L. No. 108-159, 117 Stat.1952, to "prevent identity theft, improve resolution of consumer disputes, improve the accuracy of consumer records, [and] make improvements in the use of, and consumer access to, credit information." Id. The FACT Act amended the FCRA by adding, among other things, a provision that governs the "[d]uties of users in certain [consumer] credit transactions." 15 U.S.C. § 1681m(h). That provision addresses a practice known as "risk-based pricing" and provides statutory protections for consumers who, based on information contained in their "consumer report[s],"
The Act also required the FTC to prescribe regulations to carry out the new risk-based pricing law, including set the "form, content, time, and manner of delivery of any notice under this subsection," establish exceptions to the notice requirement, and "clarify the meaning of terms used in this subsection." 15 U.S.C. § 1681m(h)(6).
NADA and two other associations in the automobile dealer industry submitted letters in which they argued that automobile dealers should be exempt from providing an RBPN when they engage in "three-party" financing transactions; that is, when the dealer agrees to extend financing to a consumer and then immediately assigns the loan to a third party, such as a bank or finance company. (App. at 64-82 (public comment letters dated August 2008).) In these circumstances, NADA explained, it is the third-party financing company, and not the dealer, that does the risk-based pricing, for it is the financing company that evaluates the consumer's credit and proposes a wholesale interest rate (the "buy" rate) at which it will underwrite the auto loan. (Id. at 63.) The dealer relies on the "buy" rate to offer the consumer an auto loan at a higher retail interest rate than is available to car buyers with better credit histories. (Id.) Therefore, NADA argued, the obligation to provide the RBPN should fall on the financing sources that set the risk-based price and not on the auto dealers. (Id. at 66.)
On January 15, 2010, the FTC adopted the Fair Credit Reporting Risk-Based Pricing Regulations. 75 Fed.Reg. at 2724-84. In the final regulations, it addressed — and rejected — NADA's argument, concluding that an initial creditor,
On January 5, 2011, a few days after these rules took effect, NADA sought formal guidance from the FTC on whether
In March 2011, the FTC initiated a new rulemaking proceeding to amend the risk-based pricing regulations pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"), Pub.L. No. 111-203, 124 Stat. 1376 (2010). Fair Credit Reporting Risk-Based Pricing Regulations, Notice of Proposed Rulemaking, 76 Fed Reg. 13902 (Mar. 15, 2011).
On July 15, 2011, the FTC promulgated amendments to the Fair Credit Risk-Based Pricing Regulations. The amendments, codified at 16 C.F.R. Part 640, "require disclosure of credit scores and information relating to credit scores in [RBPNs] if a credit score of the consumer is used in setting the material terms of credit." 76 Fed.Reg. at 41,602.
In the preamble to the amended rule, the FTC published a section entitled "Supplementary Information" which included responses to various submissions received during the notice-and-comment period. See 76 Fed.Reg. at 41,602-26. In this section, the FTC set forth its Interpretation of the scope of the word "uses" as employed in § 1681m(h) of the amended FCRA ("Interpretation"). 76 Fed.Reg. 41,606-07 & nn. 5-9. The FTC rejected NADA's suggested interpretation and construed § 1681m(h) to apply to an automobile dealer that uses consumer reports to offer materially less favorable credit terms to car buyers — even when the dealer "does not directly obtain the consumer report[s] and/or credit score[s] from a consumer reporting agency," but instead it takes an action based on the decision of a third-party financing source that relies upon the consumer report. 76 Fed.Reg. at 41,606.
It is this interpretation that plaintiff challenges here. Specifically, NADA asserts that the Interpretation of § 1681m(h) violates the APA.
Although motions to dismiss and for summary judgment are normally judged under different legal standards, the inquiry in this case is the same. See Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1222-23 (D.C.Cir.1993) ("The district court may, however, examine matters of public record in ruling on a Rule 12(b)(6) motion, and when a district court is reviewing agency action — sitting as an appellate tribunal — the legal questions raised by a 12(b)(6) motion and a motion for summary judgment are the same.") However, since it is "the better practice," id. at 1226 n. 5, the Court will convert defendant's motion to dismiss into a motion for summary judgment.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In a case involving review of a final agency action under the APA however, the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record. See Nat'l Wilderness Inst. v. U.S. Army Corps of Eng'rs, No. 01-0273, 2005 U.S. Dist. LEXIS 5159, 2005 WL 691775 at *7 (D.D.C. Mar. 23, 2005); see also Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir.1994) ("[T]his case involves review of a final agency determination under the [APA]; therefore, resolution of th[e] matter does not require fact finding on behalf of this court. Rather, the court's review is limited to the administrative record."). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review. See Bloch v. Powell, 227 F.Supp.2d 25, 31 (D.D.C.2002), aff'd, 348 F.3d 1060 (D.C.Cir.2003).
To assess NADA's first claim — that the Interpretation exceeds the FTC's statutory authority — the Court must begin "with the first step of the two-part framework announced in Chevron ... and ask whether Congress has `directly addressed the precise question at issue.'" Mayo Found. for Med. Educ. & Research v. United States, ___ U.S. ___, 131 S.Ct. 704, 711, 178 L.Ed.2d 588 (2011) (quoting Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). "Under Chevron Step One, the court examines the statute de novo," by applying "the traditional tools of statutory construction." Eagle Broad. Group, Ltd. v. FCC, 563 F.3d 543, 550, 552 (D.C.Cir.2009) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). "If this `search for the plain meaning of the statute ... yields a clear result, then Congress has expressed its intention as to the question,'" and the court need not proceed further because "`deference is not appropriate.'" Eagle Broad., 563 F.3d at 552 (quoting Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C.Cir.1997)). However, if "Congress has not directly addressed the precise question at issue," and the agency has acted pursuant to an
Although NADA and the FTC contend that the statute is unambiguous, and thus the inquiry should end at Step One, they disagree about the meaning of the term "uses." (Pl.'s Opp'n at 7; Def.'s Mot. to Dismiss at 13, 22.) Therefore, Court's first task is to determine whether the statute is ambiguous by "consider[ing] the provisions at issue in context, using traditional tools of statutory construction and legislative history." Wells Fargo Bank, N.A. v. FDIC, 310 F.3d 202, 206 (D.C.Cir.2002).
The statute requires that
15 U.S.C. § 1681m(h)(1) (emphasis added).
"Uses" is not defined in the statute. The parties debate whether the term refers narrowly to direct use by those who obtain a physical copy of the report or whether it encompasses indirect or attenuated reliance upon the consumer report (i.e., based on use by third-party financing sources upon which the auto dealers depend).
The term "use" is arguably susceptible to either definition. The inquiry, of
However, "[l]anguage, of course, cannot be interpreted apart from context," Smith, 508 U.S. at 229, 113 S.Ct. 2050, and both parties posit that the statutory context resolves any possible ambiguity. (Def.'s Mot. to Dismiss at 17; Pl.'s Opp'n at 9; Pl.'s Reply at 3-4); see also Smith, 508 U.S. at 229, 113 S.Ct. 2050 ("The meaning of a word that appears ambiguous if viewed in isolation may become clear when the word is analyzed in light of the terms that surround it.") The FTC argues that the statute's use of the terms "obtain," "procure," and "furnish" in other sections (e.g., 15 U.S.C. §§ 1681a, 1681b, 1681e, 1681g,) demonstrates that, when Congress meant to refer to physical possession of the consumer report, it did so in more precise terms. (Def.'s Mot. to Dismiss at 16-19; 76 Fed.Reg. at 41,607 n. 8.) Therefore, it reasons, the fact that Congress chose the term "use" in § 1681m(h) shows that it intended to signify broader coverage. NADA counters that, as a practical matter, "use" is necessarily narrower, and it refers exclusively to those who actually obtain the credit report because only they would have the data (e.g., the credit score and the identity of the credit reporting agency) that must be included in the RBPN. (Pl.'s Mot. for Summ. J. at 14.) Both parties rely on § 1681m(e)(4), which defines a creditor as one who "obtains or uses consumer reports, directly or indirectly, in connection with a credit transaction." The FTC contends that the inclusion of both "obtain" and "uses" shows that "use" must refer to more than mere physical possession. (Def.'s Mot. to Dismiss at 18.) NADA, for its part, focuses on the clause "directly or indirectly," arguing that, if Congress had meant for § 1681m(h)'s "use" to include indirect use, it would have said so. (Pl.'s Mot. for Summ. J. at 17; Pl.'s Opp'n at 9.)
However, NADA does not explain why, if Congress meant to limit the reach of § 1681m(h) to only those who physically obtain a consumer report or the information therein, it did not again employ a more specific term like "obtain" or "procure," and further, it simply ignores the fact that, when drafting § 1681m(h), Congress chose the broadest of the terms
On the other hand, the FTC has not shown how the statute contemplates that an auto dealer that does not have the basic information contained in a consumer report (which is necessary to issue an RBPN), could provide one to a consumer.
Finally, the parties contend that the legislative history confirms their reading of the statute. (Def.'s Mot. to Dismiss at 19-22; Pl.'s Mot for Summ. J. at 16-19.) However, there is no indication that Congress even considered the question. Instead, the snippets of legislative history that both have offered are, at best, evidence of the congressional purpose. None of these, however, provide clarity as to the meaning of "uses." See Vencor, Inc. v. Physicians Mut. Ins. Co., 211 F.3d 1323, 1325-26 (D.C.Cir.2000) (explaining that appeal to the "`broad purposes' of legislation" may "ignore[] the complexity of the problems Congress is called upon to address and the dynamics of legislative action") (quoting Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 373-74, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986)).
Nor do NADA's citations to other cases involving § 1681m(h) clarify the meaning of "uses." (See Pl.'s Opp'n at 12-14.) Although plaintiff relies heavily on Castro v. Union Nissan, Inc., No. 01 C 4996, 2002 WL 1466810, 2002 U.S. Dist. LEXIS 12917 (N.D.Ill. July 3, 2002), that case is simply too dissimilar to be instructive. In Castro, the plaintiff had filed suit against Union Nissan for unauthorized pulls of its credit report by third-party financing sources. Id. at **1-2, 2002 U.S. Dist. LEXIS 12917 at **2-4. That case dealt with a different subsection of the statute (§ 1681b(f)), and the plaintiff made no argument that Union Nissan was in fact a "user" of its credit report. Id. at *3, 2002 U.S. Dist. LEXIS 12917 at *9. Most importantly, there was no allegation that Union Nissan took any action based on decisions by the financing sources that had pulled the report without authorization. Id. The other cases cited by NADA are even less relevant. See Gonzalez-Bencon v. Doral Bank, 759 F.Supp.2d 229, 237 (D.P.R.2010) (finding that § 1681m was inapplicable in a suit against a bank that furnished allegedly incorrect information to the consumer reporting
Ultimately, each party has shown that the statute is capable of supporting its interpretation, but neither has shown that the statutory text is unambiguous. Apotex Inc. v. FDA, 414 F.Supp.2d 61, 71-72 (D.D.C.2006) (finding ambiguity when "[t]he statute simply does not lend itself clearly to either approach urged by the parties here, and the text and reasonable inferences from it [do not] give a clear answer against either party") (internal quotation marks omitted), aff'd 226 Fed. Appx. 4, 5 (D.C.Cir.2007) (internal quotation marks omitted); see also PDK Labs. Inc. v. U.S. DEA, 362 F.3d 786, 796 (D.C.Cir.2004) ("That a statute is susceptible of one construction does not render its meaning plain if it is also susceptible of another, plausible construction...."). Thus, the Court cannot find "that the statute is unambiguous with respect to `the precise question at issue,'" Wells Fargo Bank, N.A., 310 F.3d at 206 (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778), and will proceed to Chevron's second step.
At Step Two, the sole question is whether the Interpretation is "a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. However, before reaching this issue, two threshold arguments must be addressed. First, plaintiff argues that no deference is due because the FTC has not been delegated authority to regulate Non-Consumer Report Dealers. (Pl.'s Mot. for Summ. J. at 22-24.) Alternatively, it argues, even if some level of deference were due, Chevron deference is not warranted here because the Interpretation was not the product of notice-and-comment rulemaking. (See id. at 19-20.)
"[D]eference to an agency's interpretation of a statute is due only when the agency acts pursuant to delegated authority.... Absent such authority, [a court] need not decide whether the regulations are otherwise reasonable" because "[a]n agency may not promulgate even reasonable regulations that claim a force of law without delegated authority from Congress." Motion Picture Ass'n of Am. v. FCC, 309 F.3d 796, 801 (D.C.Cir.2002) (internal quotation marks and citations omitted); Am. Bar Ass'n v. FTC, 430 F.3d 457, 469 (D.C.Cir.2005) ("The deference mandated in Chevron `comes into play, of course, only as a consequence of statutory ambiguity, and then only if the reviewing court finds an implicit delegation of authority to the agency.'") (quoting Sea-Land Serv., Inc. v. Dep't of Transp., 137 F.3d 640, 645 (D.C.Cir.1998)).
It is undisputed that the FTC has been delegated authority to "prescribe rules" setting forth the content and timing of RBPNs and exceptions to the notice requirement and "clarify[ing] the meaning of the terms used in [§ 1681m(h)]," 15 U.S.C. § 1681m(h)(6). (Pl.'s Mot. for Summ. J. at 5; Def.'s Mot. to Dismiss at 6.) Thus, plaintiff's argument — which is really just another version of its statutory challenge — is that defendant lacks the authority to "expand the coverage of [the statute]" by "redefin[ing] the word `use.'" (Pl.'s Mot. for Summ. J. at 23.) However, given the explicit delegation of authority in § 1681m(h)(6), it is "apparent from the agency's generally conferred authority and other statutory circumstances that Congress would expect the agency to be able
Even when an agency has been delegated authority to act, "no Chevron deference is due unless the agency's action has the `force of law.'" Motion Picture Ass'n of Am., 309 F.3d at 801 (quoting Mead Corp., 533 U.S. at 227, 121 S.Ct. 2164). Since the Interpretation was published in the preamble to the 2011 regulations and was not subject to notice-and-comment rulemaking proceedings, NADA argues that the Agency cannot claim Chevron deference. (Pl.'s Mot. for Summ. J. at 22-24.)
The FTC's first argument, that it deserves Chevron deference because NADA is actually challenging the 2010 regulations (Def.'s Opp'n at 23),
However, notwithstanding the absence of notice-and-comment rulemaking, the interpretation is entitled to Chevron deference under Barnhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002). In Barnhart, the Supreme Court explained that less formal interpretations may still warrant Chevron deference if "the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time all indicate that Chevron provides the appropriate legal lens through which to view the legality of the Agency interpretation here at issue." Id. at 222, 122 S.Ct. 1265; see
Indeed, the Court of Appeals has granted Chevron deference in analogous situations. See, e.g., Menkes v. U.S. Dep't of Homeland Sec., 637 F.3d 319, 331 (D.C.Cir.2011) (affording Chevron deference to Coast Guard decision in adjudicatory proceeding because it was "bound up with the administration of the ... scheme of regulating"); Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1280 (D.C.Cir. 2004) (according Chevron deference to FDA letter due to "complexity of the statutory regime under which the FDA operates, the FDA's expertise[, and] the careful craft of the scheme it devised to reconcile the various statutory provisions"). Similarly here, the FTC has been specifically charged with clarifying the terms of and establishing the procedure for a complex system to enable consumers to correct their credit reports and to prevent identity theft. Though § 1681m addresses only one part of the system, the way that the provision is implemented affects other aspects of the statutory scheme. Finally, the Interpretation was published in the Federal Register, a factor which "is not in itself sufficient to constitute an agency's intent that its pronouncement have the force of law," but "where, as here, that publication reflects a deliberating agency's self-binding choice, as well as a declaration of policy,... [it] is further evidence of a Chevron-worthy interpretation." Citizens Exposing Truth about Casinos v. Kempthorne, 492 F.3d 460, 467 (D.C.Cir.2007) (internal citation omitted). For these reasons, in addition to the Agency's thorough consideration of the matter, the Court concludes that the agency's 2011 interpretation has the force of law, and on this basis, it will proceed to Chevron's second step.
At Chevron's Step Two, the question for the court is "whether the agency's position rests on a `permissible construction of the statute.'" Mylan Labs., Inc., 389 F.3d at 1280 (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation" and "[s]uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. Under this deferential standard, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844, 104 S.Ct. 2778. Rather, courts must uphold an agency's interpretation if it is "reasonable and consistent" with the statutory purpose and legislative history. GTE Serv. Corp. v. FCC, 205 F.3d 416, 421 (D.C.Cir.2000). However, "a court will not uphold an interpretation `that diverges from any realistic meaning of the statute.'" Id. at 421 (quoting Massachusetts v. Dep't of Transp., 93 F.3d 890, 893 (D.C.Cir.1996)).
Here, it is clear that the FTC's interpretation warrants deference. First, as shown in Section II(A), supra, the agency's interpretation of § 1681m(h) is consistent with the language of the statute.
Second, the agency reasonably interpreted "use" to promote the FCRA's goal of providing consumers with accurate information about their credit reports. (Def.'s Mot. to Dismiss at 22-24.) The Interpretation is consistent with the FTC's regulatory regime, including the requirement that auto dealers that are initial creditors in three-party transactions provide the RBPN. 75 Fed.Reg. at 2730 (reasoning
Even if compliance with the Interpretation could create "awkward and burdensome" situations, as plaintiff suggests (Pl.'s Mot. for Summ. J. at 20), that does not render it unreasonable. See Apotex Inc., 414 F.Supp.2d at 72 (explaining that, even if the agency's approach is imperfect in practice, "that would not provide a sufficient basis to render the [agency's] approach impermissible under Chevron step two"). On the contrary, a third reason that the Interpretation is reasonable is that it avoids the difficulties that flow from NADA's approach. As defendant points out, NADA's interpretation could result in the confusing situation where consumers receive multiple notices or no notice at all, see 76 Fed.Reg. at 41,607 n. 9,
Alternatively, even if it cannot claim Chevron deference, the agency would still prevail based on the persuasive power of its reasoning. In United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292, the Supreme Court made clear that even a ruling made without the "force of law" is entitled to "claim the merit of its writer's thoroughness, logic and expertness, its fit with prior interpretations, and any other sources of weight." Id. at 235, 121 S.Ct. 2164. "`The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Id. at 228, 121 S.Ct. 2164 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)) (alteration in original).
Arguing that the Interpretation does not deserve Mead deference, NADA contends that it is not persuasive because it is not grounded in past precedent (Pl.'s Mot. to Dismiss at 20-21; Pl.'s Opp'n at 10, 23-24; Pl.'s Reply at 8), and because the practical difficulties it produces prove that is the product of either faulty reasoning or insufficient expertise. (Pl.'s Mot. to Dismiss at 20-21; Pl.'s Opp'n at 10-12, 25; Pl.'s Reply at 9.) This argument necessarily fails. For the same reasons that the Interpretation is reasonable, it is persuasive.
As an initial matter, it bears noting that, though the Interpretation was not subject to notice and comment, its promulgation was relatively formal as it was prompted by NADA's comment, submitted in a formal rulemaking process, and published in the Federal Register as part of RBPN rulemaking on a different issue.
Furthermore, it is critical to highlight the flip-side of NADA's practicality argument. While it decries the administrative burden the Interpretation imposes, NADA ignores the fact that its proposed interpretation presents its own problems (i.e., it could upset the administration of the broader statutory regime, result in consumers receiving confusing information, or prevent consumers from receiving any information at all). NADA also downplays the fact that the Agency considered the practical difficulties pointed out by NADA and, instead, dismisses the Agency's suggested alternatives (see supra note 17) as things that "generally do not" happen. (Pl.'s Reply at 9.) However, the fact that Non-Consumer Report Dealers may have to operate differently does not call into question the FTC's decisionmaking.
While NADA may not like the Agency's conclusions, the persuasiveness of the FTC's reasoning entitles it to deference under Mead.
In its second claim for relief, NADA argues that, even if the FTC's interpretation survives Chevron, it is nonetheless "arbitrary, capricious, and otherwise not in accordance with law." (Pl.'s Mot. for Summ. J. at 24 (citing 5 U.S.C. § 706(2)(A)); Pl.'s Opp'n at 25.) In response, the FTC argues that it prevails under Chevron or Mead with respect to Count II for essentially the same the reasons it prevailed on Count I. (Def.'s Mot. to Dismiss at 22-24.)
Under § 706(2)(A), an administrative action may be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). While agency actions are presumed valid and granted substantial deference, they are not spared a "thorough, probing, in-depth review."
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The scope of review under this standard is narrow; it requires that an agency's decision be upheld "if the agency's path may reasonably be discerned" and reversed only where "there has been a clear error of judgment." Id. (citations omitted).
NADA's arguments here echo those in its first claim. It contends that the FTC failed to consider the practical problems created by the Interpretation, used the "causal, transaction-based" analysis without any legal basis, and predicated its conclusion on an erroneous understanding of three-party transactions. (Pl.'s Mot. for Summ. J. at 25.) However, as explained above, the Agency considered the practical implications of the issue and provided a well-reasoned basis for its decision that is consistent with the regulatory and statutory scheme. Regardless of whether the FTC's "causal, transaction-based" analysis had been previously articulated, the factors guiding this analysis are completely consistent with the Agency's preexisting regulations. NADA's protestations, including its arguments that the financing sources are not the auto dealers' agents and that the burden on auto dealers would be "considerable" (Pl.'s Reply at 9), do not establish an error of judgment or undermine the FTC's decision. Thus, there is no basis for invalidating the FTC's interpretation as arbitrary and capricious.
For the foregoing reasons, the Court denies plaintiff's motion and grants summary judgment to defendant. A separate order accompanies this Memorandum Opinion.
