--- Am. Tribal Law ----, 2022 WL 597057 (Eastern Cherokee Ct.)
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Cherokee Court of the Eastern Band of Cherokee Indians.
LOUIS CAMPOS, Individually, and as Husband and Personal Representative of the Estate of Sheila Diane Campos, Plaintiff,
JOSHUA PARKER, in his individual capacity, and ROBERT WILCOX, P.E., in his individual capacity Defendant.
CASE NO.: CV 21-107
FEBRUARY 22, 2022
MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
MONTY C. BECK Chief Judge, Cherokee Court
SUMMARY OF FACTS
On or about July 10, 2016, the decedent, Sheila Diane Campos, was a patron at the Harrah’s Cherokee Casino (the “casino”) in Cherokee, North Carolina. She left the casino that night to walk back to her hotel, the Stonebrook Lodge, that was across the street. Paint Town Road runs between the casino and the Stonebrook Lodge and there is a marked crosswalk for pedestrians. While crossing Paint Town Road in the crosswalk, decedent was struck by a car and sustained fatal injuries. She died on July 17, 2016.
On July 7, 2017, Plaintiff filed his initial complaint against the Eastern Band of Cherokee Indians (“EBCI”) and other parties in File No. 17-CV-331 (the “prior action”) alleging liability for improperly designing, inspecting and maintaining the crosswalk and road that the decedent was crossing when struck by the vehicle. The trial court granted the Motions to Dismiss filed by EBCI and the other defendants in the prior action by order filed November 15, 2019. Plaintiff appealed that order to the Cherokee Supreme Court on December 12, 2019 and no opinion has been issued in that appeal. Plaintiff filed the current action on March 1, 2021 and seeks to hold EBC1 employees individually liable for Plaintiffs decedent’s injuries and death.
In the current action, Plaintiff alleges Defendants Parker and Wilcox, employees of EBCI Department of Transportation (“EBCI DOT”), had a duty to Plaintiff’s decedent and members of the public to “exercise that degree of skill and learning commonly applied under the circumstances in the community by the average prudent reputable Traffic Planner or Professional Engineer in his or their work for the Cherokee DOT, including design, maintenance, and improvement of such road features as crosswalk, signage, road markings, lighting, and others.” Complaint ¶ 20. Plaintiff alleges Defendants breached their duty of care owed to Decedent. Plaintiff alleges and concedes that at all relevant times, Defendants were acting within their scope of employment with EBCI DOT. The claims filed against the individual defendants are for professional negligence and breach of customs and traditions.
On July 23, 2021, Defendants filed a Motion to Dismiss under Rule 12(b)(1) and/or Rule 12(b)(6). Arguments were heard by the Court on November 3, 2021 and the Court took the matter under advisement.
LEGAL QUESTIONS PRESENTED
1. Is EBCI the real party in interest in the current action and, if so, does the Court have subject matter jurisdiction of the matter?
Defendants argue EBCI is the real party in interest in the current action. Furthermore, they argue sovereign immunity bars the claims and the Court lacks subject matter jurisdiction.
“A motion to dismiss based on tribal sovereign immunity is a question of subject matter jurisdiction. Teesateskie v. Eastern Band of Cherokee Indians, 12-CV-059, 13 Am. Tribal Law 180, 185, 2015 WL 10575896 (Cher. Sup. Ct. October 12, 2015), citing Seneca-Cayuga, 197 N.C.App. at 182, 676 S.E.2d at 584 (evaluating tribal sovereign immunity under Rule 12(b)(1) as a question of subject matter jurisdiction).”
In the order dismissing the prior action, the Cherokee Court held that sovereign immunity barred Plaintiffs suit brought against EBC1. See, Order of Judge Randle Leon Jones filed November 15, 2019 in File No. CV 17-331, Campos v. Eastern Band of Cherokee Indians et. al. Therefore, “identifying the real party in interest in the current action is now the decisive question. If, despite the form of [Plaintiff’s] caption, [EBCI] is the real party in interest [in the current action], then this court” does not have subject matter jurisdiction over the action. See, Cunningham v. Lester, 990 F.3d 361, 365 (4th Cir. 2021) (“Cunningham II”).
Plaintiff argues this issue is controlled by the holding in Lewis v. Clarke, 137 S. Ct. 1285 (2017) and the real parties in interest are the individually named defendants and not EBCI. Based on Teesateskie and Cunningham II. the Court is not persuaded by Plaintiff’s argument.
In Teesateskie, Plaintiff (class of 17-year-old beneficiaries of the Minors Trust Fund) filed suit against the EBCI Minors Fund, the Investment Committee of the Minors Fund, the Trustees of the Minors Fund (who were sued in their capacity as Trustees and individually), and Principal Chief, Michell Hicks. The claims alleged against defendants were for violations of the Cherokee Code, negligence, breach of fiduciary duty, unjust enrichment, constructive trust, and punitive damages. The Cherokee Court dismissed the action concluding it lacked subject matter jurisdiction because the claims were barred by sovereign immunity. The Cherokee Supreme Court affirmed.
In Lewis, plaintiffs filed a lawsuit against Clarke alleging they were injured as a result of Clarke’s negligent operation of a motor vehicle on an interstate highway within the state of Connecticut. At the time of the accident, Clarke was employed by a tribal gaming authority and was acting within the scope of his employment for the tribe while transporting patrons from a casino. The lawsuit was filed in Connecticut state court based on state law. Clarke moved to dismiss for lack of subject matter jurisdiction. He argued that because he was an employee of the tribe (its Gaming Authority - an arm of the tribe) and was acting within the scope of his employment at the time of the accident, he was entitled to sovereign immunity against the lawsuit. The Connecticut Supreme Court agreed and dismissed the action. Lewis v. Clarke, 320 Conn. 706 (2016). The United States Supreme Court reversed. The court was careful to state that the mere fact the employee was acting within the scope of his employment standing alone was not sufficient to allow the employee to avoid suit based on sovereign immunity. “In a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity.” Lewis, 137 S.Ct. 1285, 1289. [Emphasis added]. Similarly, the court stated that “in ruling that Clarke was immune from this suit solely because he was acting within the scope of his employment, the court extended sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federal employees. Lewis, 137 S.Ct. 1285, 1292-1293. [Emphasis added]. In other words, the Lewis court acknowledged that other circumstances, in addition to the employee acting within the scope of employment, might warrant dismissal of an action based on sovereign immunity.
In fact, the Fourth Circuit recognized in Cunningham II that Lewis left open the possibility that an employee sued individually may still raise sovereign immunity as a bar if the employee is acting within the scope of his employment. Therefore, the Court must determine what other circumstances would allow sovereign immunity to be raised by the individual employee.
In Cunningham, Plaintiff initially tiled suit against a government contractor alleging violations of the Telephone Consumer Protection Act. The Court of Appeals affirmed the district court’s dismissal of the suit for lack of subject matter jurisdiction. Cunningham v. General Dynamics Information Technology, Inc., 888 F.3d 640 (4th Cir. 2018) (“Cunningham I”).
Plaintiff then filed suit against federal employees in their individual capacities based on the same allegations. The District Court granted the defendants’ motion to dismiss, finding that the federal government was the real party in interest and that the government had not waived it sovereign immunity. The Fourth Circuit Court of Appeals affirmed in Cunningham II. The primary differences between the two lawsuits were (a) naming the federal employees individually as defendants and (b) requesting only monetary relief and not an injunction.
Both the District Court and Circuit Court relied on Martin v. Wood, 772 F.3d 192 (4th Cir. 2014) in concluding that the federal government was the real party in interest, not the individual defendants. Both courts also held that Lewis did not overrule Martin.
In Martin, the Fourth Circuit developed a five-factor test to determine whether a lawsuit against individual employees of a sovereign is actually a lawsuit against the sovereign. The Martin test requires analysis of the following factors:
(1) were the alleged unlawful actions of the state officials tied inextricably to their official duties; (2) if the state officials had authorized the desired relief at the outset, would the burden have been borne by the State; (3) would a judgment against the state officials be institutional in character, such that it would operate against the State; (4) were the actions of the state officials taken to further personal interests distinct from the State’s interests; and (5) were the state officials’ actions ultra vires.
Cunningham II, 990 F.3d at 366 (citing, Martin, 772 F.3d at 196).
Under the first factor, were the alleged unlawful actions of Parker and Wilcox tied inextricably to their official duties? C.C. § 136A-25 provides: ‘‘The Eastern Band of Cherokee have jurisdiction over all roads, highways, byways, and properties within the external boundaries of the Eastern Band of Cherokee Reservation.” As noted in Plaintiffs Complaint, the Cherokee Department of Transportation has the stated vision to “provide safe and accessible roadways....” Complaint ¶ 16 (quoting the Cherokee Department of Transportation section of the Official Government Website of EBCI).
In Lewis, the Defendant, who was operating a limousine transporting patrons from a casino, had an independent duty to drive safely and obey the traffic laws whether he was acting within the scope of his employment or not. The Defendants, Parker and Wilcox, had no independent duty to “exercise that degree of skill and learning commonly applied under the circumstances in the community by the average prudent reputable Traffic Planner or Professional Engineer in his or their work for the Cherokee DOT, including design, maintenance, and improvement of such road features as crosswalk, signage, road markings, lighting, and others.” Complaint ¶ 20. Their duties were tied inextricably to their official duties as employees of EBCI. The Court cannot envision any circumstances under which these Defendants would be required to exercise these duties otherwise (unlike the duties of the defendant in Lewis who was operating a motor vehicle). Accordingly, the Court concludes the first factor weighs against Plaintiff.
Under the second factor, if the EBCI had authorized the desired relief at the outset (monetary relief), the burden would have most certainly been borne by EBCI? It would be absurd to assume EBCI would expressly authorize lawsuits for monetary damages to be filed against its employees, who were acting solely within the scope of their employment, and not agree to indemnify these employees from such lawsuits. In fact, EBCI has clearly expressed that such lawsuits may not be filed against these employees. C.C. § 7-13 provides that “[t]he Judicial Branch shall dismiss any claim or cause of action against the Eastern Band of Cherokee Indians, or any of its programs, enterprises, authorities, officials, agents, or employees acting in their official capacities, unless the complaining party demonstrates that the Cherokee Tribal Council or the United States Congress has expressly and unequivocally waived the Eastern Band’s sovereign immunity for such a claim in a written ordinance, law, or contract.”). [Emphasis added]. Accordingly, the Court concludes the second factor weighs against Plaintiff.
Under the third factor, would a judgment against Parker and Wilcox be institutional in character, such that it would operate against EBCI? Without close analysis, it would appear that because Plaintiff seeks only monetary damages against Parker and Wilcox, as in Lewis, any potential judgment would not operate against the sovereign, EBCI. But a closer inspection reveals otherwise. Lewis is distinguishable. Lewis involved a single incident of an employee’s failure to obey traffic laws. Other than awarding monetary damages, nothing further would have been required to resolve the matter legally. In the instant case, the alleged negligent planning, design, construction, and maintenance of crosswalks, signage, markings and lighting involves more than a singular act by a single actor at a specific moment in time. Furthermore, it involves more than an employee of EBCI simply violating traffic laws. Rather, it involves the actual jurisdiction, power and authority of the sovereign (EBCI) over roads within its boundaries. This jurisdiction, power and authority can be exercised only through its agents - in this case, its employees. It would be implausible to assume that if a monetary judgment were entered against Parker and Wilcox that EBCI would not be forced to take some action to correct the conditions that led to a finding of negligence against the employees. Otherwise, EBCI would be in the untenable position of allowing its employees to be placed in the position of facing ongoing liability for failure to correct the defective conditions that resulted in prior injury. Furthermore, these employees could not independently correct the defective conditions unless they were authorized to do so by EBCI, the sovereign having the sole jurisdiction, power and authority over the road where the defective conditions exist. The same cannot be said for the Mohegan Tribe in Lewis — what action would the Mohegan Tribe be required to take to correct the single incident of Clarke violating the traffic laws? Accordingly, the third factor weighs against Plaintiff.
Under the fourth factor, were the actions of Parker and Wilcox taken to further personal interests distinct from EBCI’s? Plaintiff has not put forward any allegations nor argued any facts to support a conclusion that the actions of Parker and Wilcox, as employees of EBCI DOT which had jurisdiction over the road in question, were taken to further their personal interests distinct from the interest of EBCI. This is not surprising as it would be implausible to imagine any circumstances under which a Traffic Planner and Professional engineer would be furthering their personal interests when acting, as Plaintiff alleges and concedes, within the scope of their employment to design, maintain and improve road features such as crosswalks, signage, road markings, and lighting of roads within the jurisdiction of EBCI. Accordingly, the fourth factor weighs against Plaintiff.
Under the fifth factor, were the actions of Parker and Wilcox ultra vires? As with the fourth factor, Plaintiff made no allegations nor argued any facts to support a conclusion that their actions were ultra vires. Accordingly, the fifth factor weighs against Plaintiff.
This case is indistinguishable from Cunningham II in which the court stated:
What remains, then, is the practical question of whether the defendants or the government is the real party in interest. Under our precedent in Martin, and the well-established tradition it embodies, this inquiry is not a difficult one. The statutory mandate at the center of this case is the requirement that CMS “establish a system” for ensuring that applicants “receive notice of eligibility for an applicable State health subsidy program.” [citation omitted]. Unlike the defendant in Lewis, who was haled into court on account of his personal negligence, the defendants, as CMS employees, were plainly acting in furtherance of this federal mandate when they signed the contract with GDIT and instructed GDIT to place its automated calls. The defendants’ actions are simply not otherwise intelligible. The possibility that the defendants may have been acting ultra vires is not alleged by either party. And the notion that the defendants may have been acting in their own private interest is not plausible. Furthermore, there is no indication in Martin, or in the pertinent Supreme Court precedent, that any of these inquiries into the substance of the case should be relaxed or omitted simply because Cunningham is not seeking an injunction.
Cunningham II, 990 F.3d 361, 367.
Plaintiff has not alleged in the current action that EBCI has waived sovereign immunity for the claims alleged in the Complaint. Because EBCI is the real party in interest and sovereign immunity bars Plaintiff’s claim for damages, the Court concludes it lacks subject matter jurisdiction of this action for damages for professional negligence.
Regarding Plaintiff’s claim for damages arising from breach of customs and traditions, the same reasoning applies—EBCI is the real party in interest and sovereign immunity bars Plaintiff’s claim for damages. Therefore, the Court concludes it lacks subject matter jurisdiction of this claim for damages for breach of customs and traditions.
Accordingly, the Plaintiff’s Complaint against the Defendants, individually, should be dismissed pursuant to Rule 12(b)(1) of the Rules of Civil Procedure.
2. If EBCI were not the real party in interest, are the Defendant’s immune from suit under public officer immunity?
While the Court concluded it does not have subject matter jurisdiction, in the interest of judicial economy, the Court hereby certifies its decision on the issue of public officer immunity in the event this case is appealed and the Cherokee Supreme Court disagrees with this Court’s decision outlined in Part I of this Order.
In Teesateskie, the Cherokee Supreme Court considered whether the defendant-trustees, who were sued individually, were protected by public officer immunity. “A motion to dismiss for failure to state a claim based on the defense of public officer immunity is properly considered under the standard for a Rule 12(b)(6) motion to dismiss. Teesateskie at 189, citing Dalenko v. Wake Cnty. Dept. of Human Servs., 157 N.C.App. 49, 54-55, 578 S.E.2d 599, 602-03 (2003).”
In Teesateskie, the Cherokee Supreme Court held:
Public officer immunity is applicable when a government official is performing a discretionary function as long as the official’s “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A discretionary function is one that “involves an element of judgment or choice.” Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 537, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988); see also U.S. v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 1274, 113 L.Ed.2d 335 (1991). A public official is not protected by the public office immunity doctrine if the official’s actions are shown to be corrupt or malicious or outside the scope of the official’s duties. See Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783 (1952). Thus, ”[a]s long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtues of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability.” Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430 (1976).
Teesateskie at 189.
Plaintiff alleges and concedes that at all relevant times. Defendants were acting within the scope of their employment. Plaintiff did not allege the Defendants acted with malice or corruption or that their actions violated clearly established statutory or constitutional rights of which a reasonable person would have known. However, Plaintiff argues the Defendants’ actions were ministerial functions instead of discretionary functions and, therefore, Teesateskie is not controlling. Plaintiff further argues Teesateskie was decided before Lewis and the Court should rely on Lewis instead of Teesateskie.
The Court will first consider whether the actions of the Defendants alleged in the Complaint were discretionary functions or ministerial functions.
Addressing discretionary functions in Teesateskie, the Court stated “a discretionary function is one that ‘involves an element of judgment or choice” ’ relying on Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 537, 108 S.Ct. 1954, 1958. 100 L.Ed.2d 531 (1988) and U.S. v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 1274, 113 L.Ed.2d 335 (1991). Plaintiff asserts a claim against the Defendants for professional negligence, alleging a duty of care “to exercise that degree of skill and learning commonly applied under the circumstances in the community by the average prudent reputable traffic planner or professional engineer in his or their work for the Cherokee DOT, including design, maintenance, and improvement of such road features as crosswalks, signage, road markings, lighting, and others.” Complaint ¶ 20.
Many courts have concluded traffic planning that involved the exercise of less judgment than that exercised by the Defendants is a discretionary function. See, Reid v. Roberts, 112 N.C. App. 222, 224-26, 435 S.E.2d 116, 119-20 (1993) (“keep[ing] the shrubbery trimmed around the stop sign and/or place the sign where there was appropriate visibility” is a discretionary function). “North Carolina case law has consistently held that installation, maintenance and timing of traffic control signals at intersections are discretionary governmental functions.” See Hamilton v. Hamlet, 238 N.C. 741, 78 S.E.2d 770 (1953); Hodges v. Charlotte, 214 N.C. 737, 200 S.E. 889 (1939); and Rappe v. Carr, 4 N.C. App. App. 497, 167 S.E.2d 48 (1969). In Hansen v. S. Dakota Dep’t of Transp., 1998 S.D. 109, 584 N.W.2d 881, 887-88, (1998) the South Dakota Supreme Court concluded that a highway planner’s job was discretionary, rather than ministerial, even though it was governed by statute, saying “[o]ne could not pluck an ordinary citizen off the street and expect they could successfully execute the duties of Howard’s offices as required by this statute.” The Georgia Court of Appeals held that installation of a traffic signal was discretionary. Murray v. Georgia Dep’t of Transp., 284 Ga. App. 263, 269, 644 S.E.2d 290, 296 (2007). The Alabama Supreme Court held that a bridge inspector was carrying out a discretionary function in failing to inspect a bridge. Bailey v. Bass, 553 So. 2d 589, 590 (Ala. 1989).
The duty “to exercise that degree of skill and learning commonly applied under the circumstances in the community by the average prudent reputable traffic planner or professional engineer in his or their work for the Cherokee DOT, including design, maintenance, and improvement of such road features as crosswalks, signage, road markings, lighting, and others” certainly involves more judgment than the functions in the above-mentioned cases. That Plaintiff even brought the claim as a professional negligence claim speaks to the fact that professional judgment must be exercised, and the work is not the type for which we could expect an ordinary citizen to be plucked off the street to perform. Hansen, 584 N.W.2d 881. 887-88 (1998).
The Court concludes that the actions of the Defendants as alleged by the Plaintiff were discretionary functions for which public officer immunity is applicable.
Finally, the Court must consider whether the Cherokee Court should adopt the federal version of public officer immunity or the North Carolina version.
Without question, the Cherokee Supreme Court adopted public officer immunity in Teesateskie, 13 Am. Tribal Law at 185. The Teesateskie court relied primarily on the broad scope of immunity as developed by the United States Supreme Court. Specifically, the Court quoted Harlow v. Fitzgerald 457 U.S. 800, 818 (1982) (“Public officer immunity is applicable when a government official is performing a discretionary function as long as the official’s ‘conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”); and Berkovitz by Berkovitz v. U.S., 86 U.S. 531,537 (1988) and U.S. v. Gaubert, 499 U.S. 315, 323 (1991) (“A discretionary function is one that ‘involves an element of judgment or choice.” ’).
Plaintiff urges this Court to adopt the more restrictive view of public officer immunity developed by the North Carolina courts. Plaintiff argues the doctrine should only apply when the public officer’s position “is created by the constitution or statutes of the sovereign, [the public officer] takes an oath of office, and exercises discretion in the performance of their duties” relying on Gunter v. Anders, 114 N.C. App. 61, 67, 441 S.E.2d, 167, 171 (1994) and Pigott v. City of Wilmington, 50 N.C. App. 401, 403-04, 273 S.E.2d 752, 754 (1981).
The Teesateskie Court clearly relied on federal law in stating its view of sovereign immunity generally. In its general discussion about sovereign immunity, the Court stated, “[t]he Supreme Court of the United States has determined that ‘the immunity possessed by Indian tribes is not coextensive with that of the States.’ ...Tribal sovereign immunity is fundamentally a matter of federal law.” Teesateskie, 13 Am. Tribal Law at 187 (quoting Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 755 (1998). [emphasis added]. Furthermore, CC § 7.2(d) provides that “[i]n deciding cases and controversies over which it has jurisdiction, the Judicial Branch shall be bound by the laws, customs, traditions, and precedents of the Eastern Band of Cherokee Indians. If there is no applicable Cherokee law, the Judicial Branch shall look next to Federal law, then to North Carolina law, and finally to the law of other jurisdictions for guidance.”
If the Teesateskie court had wanted to adopt North Carolina’s more restrictive view of public officer immunity, it could have done so. The Teesatskie opinion includes no discussion whatsoever of the manner in which the public officers’ positions were created or whether they took an oath of office.
In determining whether to follow the broader federal public officer immunity doctrine, the Court is persuaded this is the legislative intent of Tribal Council also as it adopted the broad and mandatory language in C.C. § 7-13 that provides: “The Judicial Branch shall dismiss any claim or cause of action against the Eastern Band of Cherokee Indians, or any of its programs, enterprises, authorities, officials, agents, or employees acting in their official capacities, unless the complaining party demonstrates that the Cherokee Tribal Council or the United States Congress has expressly and unequivocally waived the Eastern Band’s sovereign immunity for such a claim in a written ordinance, law, or contract.” Plaintiff has alleged nothing to demonstrate that the Tribal Council or the United States Congress has unequivocally waived sovereign immunity in this case. Clearly, this Code provision indicates a strong public policy favoring broad protection of tribal employees from suit. Relying on Tribal Council’s unequivocal statement of public policy and the less restrictive Cherokee and federal view of public officer immunity, the Court concludes the individual Defendants, Parker and Wilcox, are entitled to public officer immunity.
Accordingly, Plaintiff’s Complaint against the Defendants, individually, fails to state a claim for which relief may be granted and must be dismissed pursuant to Rule 12(b)(6) of the Rules of Civil Procedure.
Based on the conclusions above, the Court finds it unnecessary to determine if Plaintiffs claims are barred by the applicable statute of limitations.
Based on the foregoing analysis and the arguments presented, IT IS HEREBY ORDERED as follows:
1. Defendants’ Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is GRANTED.
2. Defendants’ Motion to Dismiss for failure to state a claim for which relief may be granted pursuant to Rule 12(b)(6) is GRANTED.
Dated: February 22, 2022.