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ORDER
A § 3582(c)(2) request for sentence modification is discretionary, United States v. Cunningham, 554 F.3d 703, 707 (7th Cir.2009), even for defendant Stephen Golden whose Guideline range was lowered to 360 months to life from a range of life, and despite Golden’s argument to the contrary a district judge is permitted to have a sentence alone which is what the judge did in Golden’s case. Id. The district judge did not abuse his discretion in handling Golden’s § 3582(c)(2) motion. And, like his decision whether to grant a sentence reduction, the district judge’s decision not to conduct a hearing is committed to his discretion. United States v. Young, 555 F.3d 611, 615 (7th Cir.2009).
AFFIRMED.
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ORDER
Byron Dubois Collins pleaded guilty to robbing a bank, see 18 U.S.C. § 2113(a), and was sentenced to 200 months in prison. Collins appeals, but his appointed counsel cannot identify any nonfrivolous arguments to pursue and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Collins declined an invitation to respond to counsel’s submission, see Cir. R. 51(b), and so we confine our review to the issues outlined in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
At his first sentencing hearing, Collins requested a continuance to enable him to get tested for prostate cancer and have family members attend sentencing. The district court found that Collins’ medical problems did not warrant a continuance, but granted a one-month continuance so that his family could have more time to appear.
A month later, the parties reconvened for a second sentencing hearing. At the hearing, the district court calculated Col*98Iins' guideline imprisonment range. The court applied a base offense level of 20, see U.S.S.G. § 2B3.1(a), with two additional levels for taking property from a bank, see id. § 2B3.1(b)(l), three more levels for brandishing a dangerous weapon, see id. § 2B3.1(b)(2)(E), two levels for reckless endangerment during his high-speed getaway, see id. § 3C1.2, and a two-level reduction for acceptance of responsibility, see id. § 3E1.1, for a total offense level of 25. The court noted, however, that Collins met the criteria for a career offender, see id. § 4B1.1 (a), and since the maximum penalty for the robbery was 20 years, see 18 U.S.C. § 2113(a), the corresponding offense level was 32, see U.S.S.G. § 4Bl.l(b)(C). With a two-level reduction for acceptance of responsibility, see id. § 3E1.1, and a criminal history category of VI, Collins’ guideline imprisonment range was 168 to 210 months. The court imposed a term of 200 months’ imprisonment.
In his Anders submission, counsel first considers whether Collins could challenge his guilty plea. Collins, though, has told counsel that he does not want the plea set aside, and so counsel appropriately omits any discussion of the plea colloquy or the voluntariness of Collins’ plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel next assesses whether Collins could argue that the district court lacked sufficient evidence to support a three-level adjustment for brandishing a dangerous weapon, see U.S.S.G. § 2B3.1(b)(2)(E). But the court did not sentence Collins based on the guideline calculation that imposed the adjustment; because Collins was a career offender, the court sentenced him based on the higher offense level associated with the guidelines? career-offender provision. See U.S.S.G. § 4B1.1; United States v. Clanton, 538 F.3d 652, 660 (7th Cir.2008). Thus any challenge to an adjustment for brandishing a dangerous weapon would be moot.
Counsel then questions whether Collins could challenge his classification as a career offender. Collins disputed the classification at sentencing, insisting that he did not have two prior convictions for crimes of violence as required by U.S.S.G. § 4Bl.l(a). The district court, however, found three prior convictions for crimes of violence. The court found that Collins had two prior convictions for previous bank robberies—both crimes of violence, see U.S.S.G. § 4B1.2 cmt. n. 1—and a conviction for resisting an officer-also a violent offense because it presented a serious risk of physical injury (Collins, while driving a stolen car, had dragged the officer alongside for a short distance). See U.S.S.G. § 4B1.2 cmt. n. 1; United States v. Jones, 235 F.3d 342, 346-48 (7th Cir.2000). As the career offender guidelines require only two prior convictions for crimes of violence, see §§ 4B1.1, 4B1.2 cmt. n. 1; United States v. Templeton, 543 F.3d 378, 379 (7th Cir.2008), any challenge to the career offender classification would be frivolous.
Counsel next questions whether the district court erred by failing to include the two-level reduction for acceptance of responsibility in his total offense level. At sentencing, the judge incorrectly pronounced that Collins’ offense level was 32 when in fact her calculations dictated a level of 30. But the judge in fact arrived at the correct sentencing range (168 to 210 months) for someone with an offense level of 30 and a criminal history of VI. If the judge had actually used an offense level of 32, the guideline range would have increased to 210 to 262 months. Any misstatement by the court was therefore harmless, see, e.g., United States v. Stott, 245 F.3d 890, 915 (7th Cir.2001).
*99Counsel also questions whether the district court erred in denying a continuance in order for Collins to be tested for cancer. But the court did grant a continuance for a month in order that Collins’ relatives could attend the sentencing hearing. Collins did not object to the length of the continuance, never again mentioned his concern about cancer, and even told the court that the proposed continuance “would be fíne.” We will not reverse the denial of a continuance absent an abuse of discretion and a showing of actual prejudice to a defendant, see United States v. Vincent, 416 F.3d 593, 598 (7th Cir.2005), and we see no potential prejudice to Collins.
Finally, counsel notes that Collins has a history of mental health problems (namely depression), and questions at length whether the district court erred by not accounting for that history by departing below the guideline range. But Collins waived any appellate challenge because he never requested a downward departure. See United States v. Fudge, 325 F.3d 910, 916 (7th Cir.2003). Since waiver of an argument precludes any appellate review, our analysis of this potential issue would end there. See id. But even if Collins had pressed his departure requests, we would still see no error unless the sentence were unreasonable. See United States v. Vaughn, 433 F.3d 917, 924 (7th Cir.2006). Under U.S.S.G. § 5K2.13 (policy statement), the court should not account for diminished capacity by departing below the guideline range if the defendant’s offense involved a serious threat of violence or if the defendant’s criminal history reflected a need to protect the public. United States v. Zuniga-Lazaro, 388 F.3d 308, 313 (7th Cir.2004). The court explicitly found that Collins’ violent offense and criminal history reflected a need to protect the public, and we see no potential error in those findings. Any argument that his sentence was unreasonable would be without merit.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Wisconsin prisoner Earl Diehl appeals the denial of his petition for a writ of habeas corpus. We affirm the judgment.
In 1997 Diehl was convicted of burglary in Wisconsin state court and sentenced to eight years’ imprisonment. The trial court, however, stayed his prison sentence and imposed nine years’ probation. In 2005 Diehl was taken into custody by the Wisconsin Department of Corrections (“DOC”) for violating the terms of his probation by committing theft. The DOC released Diehl so he could be sentenced on the theft conviction and later renewed its order of detention. Diehl’s revocation hearing was rescheduled three times so that he could retain defense counsel. After his June 2005 revocation hearing, an administrative law judge ordered his probation revoked.
Diehl petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that the DOC’s second oi*der of detention violated the constitutional bar against double jeopardy and that the DOC’s failure to follow its internal rules during the revocation process violated due process. The district court adopted the report and recommendation of the magistrate judge and denied Diehl’s petition for habeas corpus relief. The court concluded that the DOC’s second detention order did not constitute a second punishment for the purposes of double jeopardy. The court also *101held that Diehl received due process after he was initially detained by the DOC and that the second detention order did not entitle him to a new set of due process protections.
On appeal Diehl renews his argument that the DOC violated his right to be free from double jeopardy because it issued two orders of detention based on the same probation violation. But Diehl’s DOC detentions do not constitute a violation of double jeopardy. The Double Jeopardy Clause protects against multiple punishments for the same offense. U.S. Const, amend. V; Garrity v. Fiedler, 41 F.3d 1150, 1151-52 (7th Cir.1994). But probation is part of Diehl’s original sentence, and a revocation of probation only modifies the terms of his original sentence. See United States v. Wyatt, 102 F.3d 241, 245 (7th Cir.1996); United States v. Hanahan, 798 F.2d 187, 189 (7th Cir.1986). Moreover, detention pending revocation of probation does not constitute punishment for double jeopardy purposes. See United States v. Mendoza-Morales, 347 F.3d 772, 776 (9th Cir.2003); United States v. Warneke, 199 F.3d 906, 908 (7th Cir.1999).
Diehl also repeats his argument that the DOC’s failure to follow its internal rules during the revocation proceedings violated his right to due process. Specifically, he contends that he did not have the opportunity to make a statement to DOC upon being detained; that he did not receive a preliminary revocation hearing; that the DOC failed to provide signed authorization of his probation revocation; that his revocation hearing was unreasonably delayed; and that the state revoked his probation on invalid grounds.
These contentions are meritless. Diehl’s revocation proceedings satisfied the due-process requirements set forth in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). After his detention by the DOC, Diehl was given an opportunity to explain his probation violation. In addition, no preliminary hearing was warranted because Diehl’s theft conviction established probable cause that he violated the terms of his probation. See Moody v. Daggett, 429 U.S. 78, 86 n. 7, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Schepp v. Fremont County, 900 F.2d 1448, 1456 (10th Cir.1990). Nor does due process require the DOC to provide signed authorization of his probation revocation. See Gagnon, 411 U.S. at 786, 93 S.Ct. 1756. Although Diehl’s hearing was delayed two months, that delay resulted from his own request for assistance from counsel. See id. at 790-91, 93 S.Ct. 1756 (“the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself’); United States v. Eskridge, 445 F.3d 930, 932 (7th Cir.2006). Finally, Diehl’s conviction for theft was a valid ground for revocation of his probation. See United States v. Huusko, 275 F.3d 600, 602 (7th Cir.2001).
Diehl also filed in this court a motion for summary judgment, urging that the district court’s order be reversed because McCash has failed to respond to his arguments. However, a motion for summary judgment is not a proper request in this court. Although we have considered Diehl’s underlying arguments, we deny the motion.
Accordingly, we AFFIRM the decision of the district court.
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ORDER
In this criminal case, Henry Booker appeals from the district court’s denial of his motion, which he brought under Fed. R. Civ. P. 60(b), for relief from an earlier order refusing to grant him the full reduction to his criminal sentence that he sought under 18 U.S.C. § 3582(c). We affirm the judgment of the district court.
Booker pleaded guilty in 1994 to distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). With his offense level of 37 and criminal history category of IV, his guideline sentencing range was 292 to 365 months in prison. The district court imposed a sentence of 240 months in prison, the statutory maximum under § 841(b)(1)(C). We affirmed his sentence on direct appeal, United States v. Booker, 70 F.3d 488 (7th Cir.1995), and the district court later denied his motion for collateral relief under 28 U.S.C. § 2255.
In 2008, Booker moved for a sentence reduction, see 18 U.S.C. § 3582(c), based on the retroactive changes in the crack cocaine guidelines that lowered the offense levels applicable to his conviction. The district court granted the motion and, based on his new guideline range of 235 to 293 months, which Booker does not dispute, reduced his sentence to 235 months in prison. The court declined his request to sentence him below the guideline range, stating that his original sentence was based on the statutory maximum, rather than a discretionary variance from the guideline range.
Booker did not appeal the § 3582(c) order but instead, after almost four months, moved for relief under Federal Rule of Civil Procedure 60(b), asserting that the district court was mistaken in imposing the 240-month statutory maximum in the first place. The court denied the motion.
Booker filed a timely notice of appeal of the denial of the Rule 60(b) motion (that is, within ten days of the denial, see Fed. R.App. P. 4(b)(1)(A)), but we must affirm the district court for two reasons. First, a motion under Rule 60(b) is a civil motion that is not available to an individual challenging his sentence under § 3582(c)(2). United States v. Fair, 326 F.3d 1317, 1318 (11th Cir.2003). Unlike forms of post-conviction relief that are civil in nature, see, e.g., Fisher v. Baker, 203 U.S. 174, 181, 27 S.Ct. 135, 51 L.Ed. 142 (1906) (habeas-corpus proceedings), every circuit court that has addressed § 3582(c)(2) has determined that it is criminal in nature and therefore covered only by rules applying to criminal cases, not civil cases. See, e.g., Fair, 326 F.3d at 1318 (holding that Fed.R.Civ.P. 60(b) does not apply to proceedings under § 3582(c)(2)); United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246-47 (10th Cir.2003) (concluding civil Rule 4(a)(1)(B) for time to appeal does not apply to § 3582(c)(2)); United States v. Arrango, 291 F.3d 170, 171-72 (2d Cir.2002) (same); United States v. Alvarez, 210 F.3d 309, 310 (5th Cir.2000) (same); United States v. Petty, 82 F.3d 809, 810 (8th Cir.1996) (same); United States v. Ono, 72 F.3d 101, 102-03 (9th Cir.1995) (same). Accordingly, the district court correctly denied the motion because it is not available to Booker.
Even if we assumed that Rule 60(b) motions exist in this criminal context, we would affirm. Booker attacks the underlying merits of the original § 3582(c) decision on grounds that he could have raised on direct appeal. Specifically he argues that the district court should have applied the same below-guidelines discount *104that it supposedly granted him originally. But in reviewing the denial of a Rule 60(b) motion, an appellate court does not have jurisdiction to review arguments attacking the merits of the underlying decision that could have been raised on direct appeal. See Browder v. Dir., Dep’t of Corr., of Ill., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Stoller v. Pure Fishing, Inc., 528 F.3d 478, 480 (7th Cir.2008); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir.2000); Castro v. Bd. of Educ. of City of Chi, 214 F.3d 932, 934 (7th Cir.2000). We are limited to reviewing whether the district court abused its discretion in denying Booker’s Rule 60(b) motion, see Castro, 214 F.3d at 934. But Booker fails to advance any argument that the district court abused its discretion in the Rule 60(b) order. He therefore has waived any such argument, see Fed. R.App. P. 28(a)(9)(A); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). We accordingly AFFIRM the judgment of the district court.
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ORDER
Willie Brown Parks pleaded guilty to three counts of a four-count indictment for possessing crack cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(B) (“Count I”); possessing a firearm in the furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A) (“Count II”); and being a felon in possession of a firearm, see 18 U.S.C. §§ 922(g), 924(a)(2) (“Count IV”). The district court sentenced Parks to 240 months’ imprisonment. Parks filed a notice of appeal, but his appointed counsel cannot identify any nonfrivolous arguments and has moved to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Parks declined our invitation to respond to counsel’s submission, see Cir R. 51(b), so we limit our review to the potential issues raised in counsel’s facially adequate brief. See United States v. Schtih, 289 F.3d 968, 973-74 (7th Cir.2002).
At sentencing, the district court determined that Parks was responsible for 77 grams of crack cocaine, which resulted in a base offense level .of 30 for both Counts I and IV, see U.S.S.G. § 2Dl.l(c)(5). The court applied a six-level increase because Parks assaulted a joolice officer during an attempt to flee arrest, see id. § 3A1.2(c)(1), and a three-level reduction for Parks’ acceptance of responsibility, see id. § 3El.l(b). This resulted in a total offense level of 33. With Parks’ criminal history category of IV, the guidelines range was 188-235 months, and the district court sentenced Parks to 180 months for Count I and the statutory maximum of 120 months for Count IV, see 18 U.S.C. § 924(a)(2), to run concurrently. The court also sentenced Parks to 60 months for Count II to run consecutively with these sentences. See U.S.S.G. § 2K2.4(b); 18 U.S.C. § 924(c)(1)(A).
Counsel evaluates one argument: whether Parks could argue that the 180-month sentence for Count I, though below the appropriately calculated guidelines range, was unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a). Although the guidelines are advisory, sentencing judges must consider the factors enumerated in § 3553(a). See United States v. Booker, 543 U.S. 220, 245, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Ross, 501 F.3d 851, 853 (7th Cir.2007). Counsel does not challenge the guidelines range determined by the district court, but considers whether the sentencing judge may not have adequately accounted for Parks’ troubled childhood, his relative youth, and his chances of rehabilitation.
As counsel acknowledges, however, the court mentioned these factors in determining Parks’ sentence. Though sentencing *109courts must address the § 3553(a) factors, they need not explicitly articulate conclusions for each factor. See United States v. Rhodes, 552 F.3d 624, 627 (7th Cir.2009). Even so, the sentencing judge explicitly considered the § 3553(a) factors at sentencing, noting that, while Parks was only 24 years old at sentencing, he was already a recidivist whose juvenile record began at the age of seven. Further, the court stated that any mitigating effect of Park’s youth and troubled background had to be balanced against his continuing pattern of criminal conduct and the interest of protecting the public. Airy aigument that the district court failed to properly consider the § 3553(a) factors would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Parks’ appeal.
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*110ORDER
Robert Wilson appeals from an order reducing his prison sentence under 18 U.S.C. § 3582(c)(2) but not as much as he had hoped. Because Wilson does not point to any error by the district court, we affirm the order.
Wilson pleaded guilty in 2005 to distributing crack cocaine. See 21 U.S.C. § 841(a)(1). With his criminal history category of VI and a total offense level of 29, his guidelines imprisonment range was 151 to 188 months. The district court sentenced him to 168 months in prison.
In September 2009 Wilson moved under § 3582(c)(2) for a sentence reduction based on Amendments 706 and 709 to the guidelines. Amendment 706, which the Sentencing Commission has made retroactive, see U.S.S.G. § lB1.10(c), reduced the base offense level for most drug crimes involving crack, see U.S.S.G. supp. to app. C, 226-31 (2007) (amendment 706); United States v. Monroe, 580 F.3d 552, 554 (7th Cir.2009). Amendment 709, which is not retroactive, see U.S.S.G. § lB1.10(c), instructs sentencing courts, when computing a defendant’s criminal history score, to treat as a single sentence all prior sentences that were imposed on the same day, unless the underlying crimes were separated by an intervening arrest, see U.S.S.G. supp. to app. C, 235-41 (2007) (amendment 709); United States v. Alexander, 553 F.3d 591, 592 (7th Cir.2009). Wilson did qualify for a reduction under Amendment 706. But he also had been sentenced on the same day in state court for 11 prior convictions for driving on a revoked license, and because these driving offenses had been counted separately in calculating his criminal history score, Wilson argued that Amendment 709 entitled him to a further reduction beyond that warranted by Amendment 706. The district court granted the motion for reduction on the basis of Amendment 706 and reduced Wilson’s prison term to 144 months. But the court denied Wilson’s motion “in all other respects” and did not give him an even lower sentence based on Amendment 709.
Wilson asserts that the district court abused its discretion by refusing to further lower his sentence based on Amendment 709, but he never explains how that amendment applies or how the district court erred. Instead, Wilson argues for the first time that he never served any time in prison for the driving offenses and therefore they should not have counted at all toward his criminal history. But Wilson received a six-month jail term for each conviction (with each term running concurrently and all but 62 days suspended), so this contention would have been frivolous even on direct appeal. See U.S.S.G. § 4A1.2(c)(l); United States v. Morgan, 354 F.3d 621, 623 (7th Cir.2003). His contention, moreover, has nothing to do with Amendment 709 or § 3582(c)(2). See United States v. Lawrence, 535 F.3d 631, 637 (7th Cir.2008). In any event, as we have noted, Amendment 709 was not made retroactive by the Sentencing Commission, and thus the district court was correct that the amendment could not supply the basis for a further reduction under § 3582(c)(2). See U.S.S.G. § lB1.10(a)(2)(A), (c); Alexander, 553 F.3d at 593.
Affirmed.
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ORDER
Paul Kelly organized a drug conspiracy to smuggle heroin and cocaine into the United States using young women and babies as his drug mules. Kelly arranged at least seven trips to Panama in late 1998 and early 1999 to obtain the drugs. U.S. Customs stopped one of Kelly’s couriers in May 1999, discovered the drugs, and through her cooperation arrested Kelly. After his first plea was declared null and void, see United States v. Kelly, 337 F.3d *112897 (7th Cir.2003), Kelly pleaded guilty a second time to conspiracy to import cocaine and heroin into the United States in violation of 21 U.S.C. § 963 and was sentenced to 192 months in prison.
Five years later, Amendment 709 to the United States Sentencing Guidelines changed the rule under which courts determine whether prior sentences are counted separately for the purpose of calculating criminal history. U.S.S.G. § 4A1.2(a)(2), Supp. to App. C 235 (2008) (Amendment 709). Under the old rule, prior offenses were counted as a single sentence if they were consolidated for sentencing; under the new rule, prior offenses are counted as a single sentence if the sentence was imposed on the same day. See United States v. Alexander, 553 F.3d 591, 591-92 (7th Cir.2009). Under either rule, offenses are counted separately if there is an intervening arrest. U.S.S.G. § 4A1.2(a)(2).
On July 10, 2008, Kelly moved to have his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2), invoking Amendment 709. Kelly asks the district court to modify his sentence because he was sentenced on the same day for two of the offenses that contributed to his category VI criminal history. He asserts that Amendment 709 gives him a right to have the two offenses counted as one. The district court denied the motion on April 6, 2009.
Section 3582(c)(2) permits a district court to reduce a defendant’s sentence if his sentence was based on a guidelines range that has subsequently been lowered and the reduction would be consistent with the Sentencing Commission’s policy statements. See United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009). But, as U.S.S.G. § lB1.10(a)(2)(A) makes clear, a district court may modify a sentence only if the amendment is expressly made retroactive. Because Amendment 709 was not made retroactive by the Sentencing Commission and does not clarify the guideline, it is not a basis for reduction under § 3582(c)(2). See Alexander, 553 F.3d at 592-93. And, in any event, even if Amendment 709 applied retroactively, it would not help Kelly because his two offenses were separated by an intervening arrest. See U.S.S.G. § 4A1.2(a)(2).
Kelly also argues that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court cannot treat the Guidelines as mandatory for the purpose of § 3582(c)(2). This court foreclosed that argument in United States v. Cunningham, 554 F.3d 703 (7th Cir.2009), cert. denied, — U.S. -, 129 S.Ct. 2826, 174 L.Ed.2d 552 (2009). We see no reason to reopen it here.
Because the district court properly concluded that it lacked authority to reduce Kelly’s sentence, we Affirm its judgment.
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PER CURIAM.
Jerald Fitzwater, Iris Fitzwater, and Bishop A. Louis Vaughn, Sr., appeal the District Court’s1 order dismissing their complaint without prejudice for failure to comply with an order directing them to file within fourteen days an amended complaint in conformity with Rule 8 of the Federal Rules of Civil Procedure. Following careful review, we find no abuse of discretion. See Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir.1988) (abuse of discretion review of Fed.R.Civ.P. 41(b) dismissal for failure to comply with Fed. R.Civ.P. 8) cert. denied, 488 U.S. 1013, 109 S.Ct. 802, 102 L.Ed.2d 793 (1989). We further conclude that all other issues and arguments raised by plaintiffs on appeal are meritless.
Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.
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MEMORANDUM ***
Doi Phan appeals the dismissal by the Board of Immigration Appeals (“BIA”) of his appeal from the Immigration Judge’s denial of his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Because the parties are familiar with the factual and procedural history of this case, we need not recount it here. We grant the petition in part and deny it in part.
I
The BIA did not err in concluding Petitioner could be deported without termination of his refugee status. This issue is fully controlled by our decision in Kaganovich v. Gonzales, 470 F.3d 894 (9th Cir.2006), which found that an alien who arrived in the United States as a refugee pursuant to 8 U.S.C. § 1157 may be removed, even if his refugee status has never been terminated pursuant to 8 U.S.C. § 1157(c)(4).
II
We have jurisdiction to review the denial of withholding of removal to the extent that a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims. Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.2007). Petitioner alleges the BIA applied the wrong legal standard in determining that his conviction was a “particularly serious crime.” While the court “cannot reweigh evidence to determine if the crime was indeed particularly serious, we can determine whether the BIA applied the correct legal standard in making its determination.” Delgado v. Holder, 563 F.3d 863, 871 (9th Cir.2009) (quoting Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006), overruled in part on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n. 15 (9th Cir.2008) (en banc)).
We have held that the BIA commits error when it fails to engage in a case-specific determination examining all of the factors identified in In re Frentescu, 18 I. & N. Dec. 244, 247 (1982).1 Afridi, 442 F.3d at 1219-21. In Afridi, we determined that the BIA’s consideration of only two of the factors—the nature of the conviction and the sentence imposed—and failure to consider the underlying facts and circumstances of the conviction in making its determination about danger to the community, was in error. 442 F.3d at 1221.
In the case before us, the BIA did not complete a case-specific Frentescu review, but focused only on the nature of the *147crime.2 Therefore, pursuant to Afridi, we must remand the petition for withholding so that the BIA can conduct a proper analysis of the withholding claim.
III
Substantial evidence supports the BIA’s conclusion that the petitioner had failed to meet his burden of proving that it is “more likely than not” he would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). Petitioner failed to demonstrate that he was a member of any particular targeted group. Substantial evidence supports the BIA’s conclusion that the mistreatment Petitioner received on a brief return to Vietnam in 2002 did not rise to the level of torture, nor did it indicate Petitioner would more likely than not be singled out for torture upon a permanent return.
IV
In sum, the BIA did not err in concluding Petitioner could be deported without termination of his refugee status. The BIA erred in its analysis of Petitioner’s withholding claim because it did not perform a case-specific analysis of whether his conviction constituted a “particularly serious crime.” Substantial evidence supports the BIA’s denial of relief under the CAT.
PETITION GRANTED IN PART; DENIED IN PART; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. In In re Frentescu, the BIA identified four relevant factors for determining whether a conviction was a particularly serious crime: (1) the nature of the conviction; (2) the circumstances and underlying facts of the conviction; (3) the type of sentence imposed; and (4) whether the type and circumstances of the crime indicate that tire alien will be a danger to the community. Frentescu, 18 I. & N. Dec. at 247.
. The BIA's error cannot be cured by looking at the IJ’s reasoning. Where, as here, the BIA did not adopt the reasoning of the IJ but instead exercised its power to conduct a de novo review of the record, we are limited to reviewing the decision of the BIA. See Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir.2008).
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MEMORANDUM ***
Doi Phan appeals the dismissal by the Board of Immigration Appeals (“BIA”) of his appeal from the Immigration Judge’s denial of his application for withholding of removal and relief under the Convention Against Torture (“CAT”). Because the parties are familiar with the factual and procedural history of this case, we need not recount it here. We grant the petition in part and deny it in part.
I
The BIA did not err in concluding Petitioner could be deported without termination of his refugee status. This issue is fully controlled by our decision in Kaganovich v. Gonzales, 470 F.3d 894 (9th Cir.2006), which found that an alien who arrived in the United States as a refugee pursuant to 8 U.S.C. § 1157 may be removed, even if his refugee status has never been terminated pursuant to 8 U.S.C. § 1157(c)(4).
II
We have jurisdiction to review the denial of withholding of removal to the extent that a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims. Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir.2007). Petitioner alleges the BIA applied the wrong legal standard in determining that his conviction was a “particularly serious crime.” While the court “cannot reweigh evidence to determine if the crime was indeed particularly serious, we can determine whether the BIA applied the correct legal standard in making its determination.” Delgado v. Holder, 563 F.3d 863, 871 (9th Cir.2009) (quoting Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006), overruled in part on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n. 15 (9th Cir.2008) (en banc)).
We have held that the BIA commits error when it fails to engage in a case-specific determination examining all of the factors identified in In re Frentescu, 18 I. & N. Dec. 244, 247 (1982).1 Afridi, 442 F.3d at 1219-21. In Afridi, we determined that the BIA’s consideration of only two of the factors—the nature of the conviction and the sentence imposed—and failure to consider the underlying facts and circumstances of the conviction in making its determination about danger to the community, was in error. 442 F.3d at 1221.
In the case before us, the BIA did not complete a case-specific Frentescu review, but focused only on the nature of the *147crime.2 Therefore, pursuant to Afridi, we must remand the petition for withholding so that the BIA can conduct a proper analysis of the withholding claim.
III
Substantial evidence supports the BIA’s conclusion that the petitioner had failed to meet his burden of proving that it is “more likely than not” he would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). Petitioner failed to demonstrate that he was a member of any particular targeted group. Substantial evidence supports the BIA’s conclusion that the mistreatment Petitioner received on a brief return to Vietnam in 2002 did not rise to the level of torture, nor did it indicate Petitioner would more likely than not be singled out for torture upon a permanent return.
IV
In sum, the BIA did not err in concluding Petitioner could be deported without termination of his refugee status. The BIA erred in its analysis of Petitioner’s withholding claim because it did not perform a case-specific analysis of whether his conviction constituted a “particularly serious crime.” Substantial evidence supports the BIA’s denial of relief under the CAT.
PETITION GRANTED IN PART; DENIED IN PART; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. In In re Frentescu, the BIA identified four relevant factors for determining whether a conviction was a particularly serious crime: (1) the nature of the conviction; (2) the circumstances and underlying facts of the conviction; (3) the type of sentence imposed; and (4) whether the type and circumstances of the crime indicate that tire alien will be a danger to the community. Frentescu, 18 I. & N. Dec. at 247.
. The BIA's error cannot be cured by looking at the IJ’s reasoning. Where, as here, the BIA did not adopt the reasoning of the IJ but instead exercised its power to conduct a de novo review of the record, we are limited to reviewing the decision of the BIA. See Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir.2008).
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MEMORANDUM **
Habeba Faraj Shou and her three minor children, natives and citizens of Iraq, peti*148tion for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s denial of asylum, Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995), and review for abuse of discretion the agency’s denial of humanitarian asylum, Belayneh v. INS, 213 F.3d 488, 491 (9th Cir.2000). We deny the petition for review.
Substantial evidence supports the agency’s determination that petitioners failed to establish past persecution or a well-founded fear of future persecution by Muslims on account of their Chaldean Christian religion because the record does not compel the conclusion that Shou’s father-in-law was killed on account of his religion, and the generalized country conditions information they submitted is insufficient. See Prasad, 47 F.3d at 340 (holding generalized country condition information and harm to family members unconnected to petitioner insufficient to establish a well-founded fear of future persecution).
Additionally, the IJ did not abuse his discretion in denying petitioners a humanitarian grant of asylum on the basis of the 1991 incident in which Shou was assaulted by Ba’athists. See Marcu v. INS, 147 F.3d 1078, 1082-83 (9th Cir.1998) (In denying a claim for humanitarian asylum the agency need only set out “terms sufficient to enable [the court] ... to see that the [it] has heard, considered, and decided.”) (internal quotations and citations omitted).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*150MEMORANDUM *
When this Exxon Valdez litigation was young, Sea Hawk Seafoods became a party to agreements among the plaintiffs providing for the allocation of damages. The Plan of Allocation divided recoveries among groups of plaintiffs. The Distribution Plans allocated recoveries among individual plaintiffs within each group. In February 2002, the district court approved amended versions of these agreements, and Sea Hawk Seafoods, apparently satisfied with the agreements, did not appeal.
In 2008, the main litigation in this case culminated in the Supreme Court’s ruling that Exxon’s liability for punitive damages is limited to a ratio of 1-to-l with respect to compensatory damages. Exxon Shipping Co. v. Baker, — U.S. -, 128 S.Ct. 2605, 2634, 171 L.Ed.2d 570 (2008). The Supreme Court did not consider or discuss the allocation of punitive damages among the plaintiffs. Sea Hawk Seafoods now contends that the Supreme Court’s decision controls that allocation and that Sea Hawk Seafoods is entitled to more damages than provided in the agreements.
The district court correctly ruled that the Supreme Court’s decision with respect to the extent of Exxon’s liability to the plaintiffs did not affect the earlier agreements of the plaintiffs as to the allocation of the damages. The allocation agreements remain “fair, reasonable, and adequate” within the meaning of Federal Rule of Civil Procedure 23(e); the Supreme Court’s decision does not alter the fairness of the agreements. Cf. Leroy Land Dev. v. Tahoe Reg’l Planning Agency, 939 F.2d 696, 698-99 (9th Cir.1991). Moreover, Sea Hawk Seafoods failed to preserve any right to object to the Plan of Allocation or the Distribution Plan in the not unforeseeable event that damages were to be reduced. See Slaven v. Am. Trading Transp. Co. Inc., 146 F.3d 1066, 1069 (9th Cir.1998).
Sea Hawk Seafoods also argues that it should be allowed to identify additional compensatory damages in order to qualify for additional punitive damages under the 1-to-l ratio. This argument is foreclosed by law of the case. The Supreme Court accepted the total relevant compensatory damages to be $507.5 million. Exxon Shipping, 128 S.Ct. at 2634. Plaintiffs, including Sea Hawk Seafoods, then stipulated in this court to the entry of punitive damages in the amount of $507.5 million. Sea Hawk Seafoods is not now in a position to ask us to reconsider that amount. Slaven, 146 F.3d at 1069; Leroy Land Dev., 939 F.2d at 699.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Trung Le appeals the trial court’s decision, after a bench trial, that he failed to carry his burden of proof in his claim under the Jones Act, 46 U.S.C. § 30104, and in his general maritime law claim in which he alleged that the F/T Northern Jaeger was unseaworthy. Reviewing the trial court’s findings of fact for clear error, Fed.R.Civ.P. 52(a)(6), we may disturb the trial court’s factual findings only if our review of the evidence produces a “definite and firm conviction that a mistake has been committed.” Sauers v. Alaska Barge, 600 F.2d 238, 244 (9th Cir.1979). Having no such conviction, we affirm.
Le testified that he fell while attempting to dislodge a box that had jammed in the “boxilator,” a machine that elevates boxes from the hold of the ship. He attributed his fall to the listing of the ship, an icy floor at his work station, and the flawed design of the boxilator.
Le’s story was contradicted by Danny Mills, the only witness with the opportunity to directly observe how Le was injured. Mills was standing across the conveyer belt from Le at the time of the incident. *152Mills testified that he glanced up when he noticed the boxilator had stopped and saw that Le was hunched over, holding his arm and saying that his arm hurt. He further testified that when he asked Le if he had fallen, Le told him he had not. Mills did not see Le reach into the boxilator to extract a box and did not see Le fall.
The trial court believed Mills and not Le, calling Le’s testimony “inconsistent and unreliable,” and stating that he was “less than forthright” about his prior injuries, which the trial court ultimately concluded were the primary cause of the injury at issue in this case. Mills, whom the judge found credible, also testified there was no ice where he was working.
We pay special deference to the trial judge’s credibility determinations. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Husain v. Olympic Airways, 316 F.3d 829, 839 (9th Cir.2002). We therefore cannot say it was clear error for the trial court to conclude that Le “failed to show how the vessel’s list and alleged ice in his workspace played a role in causing or aggravating his injuries.” Le therefore did not establish at trial that his injury resulted from American Seafoods Co.’s breach of its duty to provide a vessel and equipment that are “reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); see also Havens v. F/T Polar Mist, 996 F.2d 215, 217 (9th Cir.1993). Nor did Le prove that his injury resulted from a breach of the duty of care under the Jones Act.
Le’s attempt to characterize the trial court’s decision as creating a “novel holding” with respect to the general maritime law of unseaworthiness also fails. Although the trial court observed in passing that ice is among the “conditions with which seamen must cope when they make their livelihoods in the fishing industry,” that observation was not the basis for its holding that Le had not made out his case. Rather, the court concluded that “[t]he accident was not caused by ice that created unsafe, slippery conditions.” Given its finding that unsafe ice did not cause the accident, the trial court’s observations about the prevalence of icy conditions are irrelevant. Even if there was ice, the trial court found that Le did not prove how its presence caused or aggravated his injury. The vessel and its equipment were “reasonably fit for their intended use.” Mitchell, 362 U.S. at 550, 80 S.Ct. 926.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s May 20, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before June 30, 2009.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App.' P. 42(b).
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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MEMORANDUM **
Habeba Faraj Shou and her three minor children, natives and citizens of Iraq, peti*148tion for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s denial of asylum, Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995), and review for abuse of discretion the agency’s denial of humanitarian asylum, Belayneh v. INS, 213 F.3d 488, 491 (9th Cir.2000). We deny the petition for review.
Substantial evidence supports the agency’s determination that petitioners failed to establish past persecution or a well-founded fear of future persecution by Muslims on account of their Chaldean Christian religion because the record does not compel the conclusion that Shou’s father-in-law was killed on account of his religion, and the generalized country conditions information they submitted is insufficient. See Prasad, 47 F.3d at 340 (holding generalized country condition information and harm to family members unconnected to petitioner insufficient to establish a well-founded fear of future persecution).
Additionally, the IJ did not abuse his discretion in denying petitioners a humanitarian grant of asylum on the basis of the 1991 incident in which Shou was assaulted by Ba’athists. See Marcu v. INS, 147 F.3d 1078, 1082-83 (9th Cir.1998) (In denying a claim for humanitarian asylum the agency need only set out “terms sufficient to enable [the court] ... to see that the [it] has heard, considered, and decided.”) (internal quotations and citations omitted).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*150MEMORANDUM *
When this Exxon Valdez litigation was young, Sea Hawk Seafoods became a party to agreements among the plaintiffs providing for the allocation of damages. The Plan of Allocation divided recoveries among groups of plaintiffs. The Distribution Plans allocated recoveries among individual plaintiffs within each group. In February 2002, the district court approved amended versions of these agreements, and Sea Hawk Seafoods, apparently satisfied with the agreements, did not appeal.
In 2008, the main litigation in this case culminated in the Supreme Court’s ruling that Exxon’s liability for punitive damages is limited to a ratio of 1-to-l with respect to compensatory damages. Exxon Shipping Co. v. Baker, — U.S. -, 128 S.Ct. 2605, 2634, 171 L.Ed.2d 570 (2008). The Supreme Court did not consider or discuss the allocation of punitive damages among the plaintiffs. Sea Hawk Seafoods now contends that the Supreme Court’s decision controls that allocation and that Sea Hawk Seafoods is entitled to more damages than provided in the agreements.
The district court correctly ruled that the Supreme Court’s decision with respect to the extent of Exxon’s liability to the plaintiffs did not affect the earlier agreements of the plaintiffs as to the allocation of the damages. The allocation agreements remain “fair, reasonable, and adequate” within the meaning of Federal Rule of Civil Procedure 23(e); the Supreme Court’s decision does not alter the fairness of the agreements. Cf. Leroy Land Dev. v. Tahoe Reg’l Planning Agency, 939 F.2d 696, 698-99 (9th Cir.1991). Moreover, Sea Hawk Seafoods failed to preserve any right to object to the Plan of Allocation or the Distribution Plan in the not unforeseeable event that damages were to be reduced. See Slaven v. Am. Trading Transp. Co. Inc., 146 F.3d 1066, 1069 (9th Cir.1998).
Sea Hawk Seafoods also argues that it should be allowed to identify additional compensatory damages in order to qualify for additional punitive damages under the 1-to-l ratio. This argument is foreclosed by law of the case. The Supreme Court accepted the total relevant compensatory damages to be $507.5 million. Exxon Shipping, 128 S.Ct. at 2634. Plaintiffs, including Sea Hawk Seafoods, then stipulated in this court to the entry of punitive damages in the amount of $507.5 million. Sea Hawk Seafoods is not now in a position to ask us to reconsider that amount. Slaven, 146 F.3d at 1069; Leroy Land Dev., 939 F.2d at 699.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Gregorio Ramos Marquez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his applications for cancellation of removal and voluntary departure. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review.
An intervening change in the law requires remand. In concluding that Ramos Marquez was statutorily ineligible for cancellation of removal based on his 1990 conviction for possession of a controlled substance in violation of section 11350 of the California Health and Safety Code, the agency did not have the benefit of our decision in Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir.2007), in which we held that an alien seeking to establish that a criminal conviction under a divisible statute does not bar cancellation of removal under the modified categorical analysis may do so by pointing to inconclusive conviction records. Id. at 1130. We reject the government’s contention that we should not reach this issue. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir.2003).
We thus remand for the agency to reconsider Ramos Marquez’s eligibility for cancellation of removal. In light of our *154disposition, we need not address Ramos Marquez’s remaining contentions.
The parties shall bear their own costs on this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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MEMORANDUM *
Indiana Electrical Workers Pension Trust Fund, Service Employees International Union (“SEIU”) Affiliates’ Officers and Employees Pension Fund, SEIU National Industry Pension Fund, and Pension Plan for Employees of SEIU (collectively “IEW”), appeal from the district court’s order dismissing their Second Amended Complaint (“SAC”) for failure to allege demand futility under Federal Rule of Civil Procedure 23.1.
The SAC challenged the propriety of the Hewlett-Packard Company’s (“HP” or the “Company”) Board of Directors’s (“Board”) decision to make a $21.4 million payment to former HP Chief Executive Officer (“CEO”) Carleton S. Fiorina (“Fiorina”), as part of a settlement agreement, after she was terminated as CEO. The SAC asserted direct claims on behalf of HP’s shareholder and derivative claims on behalf of the Company. The district court, however, concluded that all the claims were derivative, and that dismissal of all claims was required for failure to allege demand futility. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), accepting as true the complaint’s factual allegations and construing the pleadings in the light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030-31 (9th Cir.2008). An order dismissing a shareholder derivative suit for failure to make a demand or to allege demand futility under Rule 23. 1, however, is reviewed for an abuse of discretion. Potter v. Hughes, 546 F.3d 1051, 1056 (9th Cir.2008).
1. Failure to Allege Demand Futility — IEW’s Derivative Claims (Counts IV-X)
IEW first argues that the district court erred in concluding that IEW failed to allege demand futility for Counts IV-X, which sought relief on behalf of the Company. We disagree.
“Pursuant to Rule 23. 1, a putative derivative plaintiff can initiate a derivative action only if he or she makes an adequate demand on the Board under applicable state law.” Potter, 546 F.3d at 1055; see also In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 989-90 (9th Cir.1999). Where, as here, shareholders failed to demand action from the board, they must “plead with particularity the reasons why such demand would have been futile.” Silicon Graphics, 183 F.3d at 989-90. To show demand futility, IEW was required to allege particularized facts giving rise to a reasonable doubt that the challenged transaction — here, the Board’s decision to make the $21.4 million payment — was the product of a valid exercise of business judgment.1 See id. To do so, IEW was required to present allegations that defeat the well-recognized presumption “that in making a business decision the directors of a corporation act[ ] on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.” Aronson v. Lewis, 473 *160A.2d 805, 812 (Del.1984), rev’d on other grounds by Brehm v. Eisner, 746 A.2d 244, 248 (Del.2000).
We agree with the district court that IEW failed to allege facts sufficient to rebut this presumption, and therefore failed to allege demand futility. IEW’s claims center around IEW’s contention that the Board, in making the $21.4 million payment, violated the terms of HP’s Severance Policy and Program, which required that HP obtain shareholder approval for severance payments exceeding 2.99 times the executive’s salary and bonus. Since the $21.4 million exceeded this limitation, IEW argues, the Board’s decision gave rise to a reasonable doubt that the payment was the product of a valid exercise of business judgment.
As the district court correctly concluded, however, IEW failed to allege particularized facts casting doubt upon the propriety of the approximately $21.4 million termination package, because only approximately $14.1 million of the overall payment was severance under HP’s Severance Policy and Program, and this amount did not exceed the 2.99 limit set forth in the Severance Policy. The remaining approximately $7.4 million was Fiorina’s entitlement under HP’s Long-Term Performance Cash (“LTPC”) program, an incentive program which enabled executives to earn cash awards if HP met certain financial targets. IEW’s principal challenge, therefore, is to the Board’s classification of the $7.4 million as an LTPC payment, instead of a severance payment subject to the terms of the Severance Program and Policy.
IEW contends that Fiorina was ineligible to receive payments under the LTPC program, and that therefore the entire $21.4 million constituted a “severance payment” awarded in violation of HP’s Severance Policy. We examine, and reject IEW’s arguments.
First, IEW argues that Fiorina was ineligible to receive payments under the LTPC program because she was involuntarily terminated and was not employed by HP throughout the entire LTPC payment vesting period, as required by the LTPC program. This argument lacks merit. Although the LTPC program’s forfeiture provisions did state that, generally, involuntarily terminated employees would not be eligible to receive LTPC payments, it is undisputed that the LTPC program was adopted under HP’s 2000 Stock Plan. Under the Stock Plan, the Plan Administrator, or HP Board, was afforded broad discretion to adjust program payments, including accelerating the vesting period or waiving forfeiture provisions, under the Plan. We fail to see how this broad grant of discretion can be construed to curtail the Board’s authority to accelerate the vesting period or waive forfeiture of payments earned under the LTPC program.
Second, the LTPC program authorized the Compensation Committee of the HP Board to increase or decrease LTPC payments in exceptional circumstances, provided that the employee in question was not a “covered employee” under § 162(m)(3) of the Internal Revenue Code. IEW contends that Fiorina was a covered employee, and therefore ineligible to receive discretionary LTPC payments in exceptional circumstances. Again, however, we disagree.
Section 162(m) provides, in relevant part, that “[t]he term ‘covered employee’ means any employee of the taxpayer if ... the total compensation of such employee for the taxable year is required to be reported to shareholders under the Securities Exchange Act of 1934 by reason of such employee being among the 4 highest compensated officers for the taxable year (other than the chief executive officer).” *16126 U.S.C. § 162(m)(3). Whether an employee is among the four highest compensated officers, in turn, is determined by reference to total annual “salary” and “bonus” for the last completed fiscal year. See 17 C.F.R. § 229.402, and related instructions. The LTPC was a program intended to increase incentive for HP performance over an extended period. It was defined by HP as a unique program, and payments made pursuant to it which were not part of an executive’s “salary” or “bonus.” The district court, therefore, correctly concluded that Fiorina’s LTPC payment was properly classified as “other compensation,” and not “salary” or “bonus” for the purposes of determining whether she was among the four highest compensated employees and, in turn, whether she was a covered employee. The district court, thus, did not err in concluding that the Plan Administrator, or HP Board, could exercise its discretion to increase Fiorina’s LTPC payment in exceptional circumstances such as those surrounding her termination.
Third, IEW argues that Fiorina’s severance payment should have been reduced by the payment she received under the LTPC program. We are not so persuaded. Although the Severance Program provided for an offset of severance payments by any cash severance benefits paid under other HP plans, certain payments that were consistent with Company practices were excluded from this offset provision. IEW has failed to allege particularized facts showing that the Board’s exercise of discretion in making Fiorina’s payment was inconsistent with HP practices. We therefore agree with the district court that the Board could properly decline to offset her severance payment by her LTPC payment.
Last, IEW argues that HP made two “admissions,” essentially conceding that the entire $21.4 million payment was “severance,” which, in turn, gave rise to a factual dispute that precluded dismissal for failure to state a claim. This argument lacks merit. In light of the detailed breakdown of Fiorina’s $21.4 million payment filed with the SEC and made available to shareholders, we cannot say that an offhand comment by one Board member and the broad description of the entire payment as “severance” in a proxy statement raise any such factual dispute.
In sum, IEW has failed to allege particularized facts showing the impropriety of the $21.4 million payment that Fiorina received when she was terminated from her position as HP’s CEO. IEW has thus failed to allege facts creating a reasonable doubt that the Board’s decision to make the payment was the product of a valid exercise of business judgment. The district court therefore correctly concluded that IEW failed to allege demand futility, and accordingly, properly dismissed IEW’s derivative claims.2
*162
2. Whether Counts I-III Were Direct, Not Derivative Claims
IEW also challenges the district court’s dismissal of Counts I-III of the SAC, in which IEW alleged breach of contract, promissory fraud, and breach of the fiduciary duty of disclosure. The district court concluded that because Counts I-III failed to allege facts indicating direct harm to the shareholders, Counts I-III were actually derivative, not direct claims, and must therefore be dismissed for the same reasons as the other counts. We agree with the district court’s conclusion.
To determine whether shareholder claims are direct or derivative, we must examine both who suffered the harm alleged — the shareholders or the corporation — and who would receive the benefit of any remedy. Feldman v. Cutaia, 951 A.2d 727, 732 (Del.2008). Here, the success of Counts I-III — -which contain allegations that the Board’s deceptive behavior regarding Fiorina’s LTPC payment amounted to false promises and failure to disclose material information — depend on the success of IEW’s argument that the Board violated the terms of HP’s Severance Program, Severance Policy, or LTPC program. For the reasons discussed above this argument fails. IEW, therefore, has failed to allege conduct causing direct harm to shareholders. Counts I-III, like the other dismissed counts, fail to create a reasonable doubt that the Board’s decision was the product of a valid exercise of business judgment. Counts I-III were therefore properly dismissed for failure to allege demand futility.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. The second way in which a plaintiff may show demand futility — by alleging particularized facts creating a reasonable doubt that the directors were disinterested and independent, see Silicon Graphics, 183 F.3d at 990—is not at issue in this appeal.
. IEW also argues that in approving the $21.4 million payment, the Board exceeded its authority and therefore acted ultra vires. Because the success of this argument turns on the success of IEW’s related contention that the $7.4 million was in fact a severance payment, we need not address it. Moreover, because we affirm the district court's ruling that IEW failed to allege demand futility, we need not reach the additional arguments raised by HP and the Board, including whether the SAC failed to allege sufficient facts to satisfy the heightened pleading standard under § 102(b)(7) of the Delaware General Corporate Law, see 8 Del. C. § 102(b)(7), whether there is any merit to the substantive allegations in the complaint, and whether the Board’s decision was protected by the business judgment rule even if Fiorina’s termination package did not comply with all the provisions of HP's Severance Policy, Severance Program, or LTPC program.
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MEMORANDUM **
Rashawn Bias appeals the district court’s denial of his suppression motion following the entry of a conditional guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). We affirm.
I
Police officers received undisputedly reliable and specific information from emergency medical technicians that Bias was carrying a concealed weapon. The police searched for Bias, and observed him and a companion take what they believed to be an evasive maneuver. Because Bias was armed, the police detained him at gunpoint, ordered him to the ground, and handcuffed him. The police asked if he was armed, and Bias answered in the affirmative. The gun was located in his waistband, as described by the paramedics.
Because the police had reliable, detailed, and articulable facts, the totality of the circumstances supports the district court’s finding that the police had reasonable suspicion to conduct an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Bias contends that the stop was illegal under United States v. Ubiles, 224 F.3d 213 (3d Cir.2000) and United States v. Roch, 5 F.3d 894 (5th Cir.1993). However, these cases are distinguishable. Both Ubiles and Roch involved tips from anonymous informants, as contrasted with the paramedics in this case who actually observed the weapon. Further, in this case, the Terry stop was concluded in a county in which less than 1% of the population had a permit to carry a concealed weapon. Finally, neither Ubiles nor Roch involved a situation in which the defendant made what appeared to be an evasive maneuver prior to the Terry stop, a factor that the Supreme Court found important in Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
II
Bias also claims that, even if reasonable suspicion supported his seizure by the police, that the police actions in this case rose to the level of an arrest under Washington v. Lambert, 98 F.3d 1181 (9th Cir.1996). However, the stop in this case did not constitute an impermissible arrest, *164because Washington v. Lambert specifically suggested that an intrusive stop may be reasonable “where the police have information that the suspect is currently armed.” Id. at 189 (introducing a multi-factor test). Here, the police had reliable witness testimony that Bias was carrying a concealed weapon.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Lourth Pak petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the parties are familiar with the factual and procedural history of this case, we need not recount it here.
I
We assume, as the parties have, that Pak demonstrated past persecution by the Khmer Rouge, entitling him to a presumption of a well-founded fear of future persecution. Even with that presumption, the evidence on the record was sufficient to allow a reasonable fact finder to conclude that Pak failed to show a clear probability of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The government presented sufficient evidence that country conditions in Cambodia have changed to permit a conclusion that Pak’s “fear of future threat to life or freedom is unrelated to the past persecution,” 8 C.F.R. § 208.16(b)(l)(iii), as the Khmer Rouge were unseated by the current government. Pak’s evidence that they continue to perpetrate acts of violence was not only several years old at the time of the hearing, but also specifies that they target people who are ethnic Vietnamese, which Pak is not.
Nor did Pak present sufficient evidence to compel a reasonable finder of fact to conclude that it was more likely than not that he would be persecuted on one of the five enumerated grounds in the future. Even assuming that temporary imprisonment rises to the level of persecution, the record permits a conclusion that the Cambodians removed from the United States were not detained for protected reasons, and that the detentions may simply have been a one-time occurrence as the country struggled to implement the memorandum of understanding. Compare Rodriguez-Roman v. INS, 98 F.3d 416, 430 (9th Cir.1996) (“[A]n asylum applicant who left his country because of his political opinions and who faces severe punishment for illegal departure has established that he is *169subject to persecution on account of political opinion.” (emphasis added)).
Substantial evidence also supports the BIA’s rejection of Pak’s CAT claim. As we have discussed, the record does support Pak’s assei'tion that at least some persons who were returned to Cambodia were detained on arrival. However, the State Department Country Report indicates they were released within a few weeks. There is no evidence in the record that the detainees were mistreated or tortured within the meaning of CAT. Pak submitted other evidence of general treatment of those in prison in Cambodia, but that evidence did not meet the threshold of proof required under CAT.
II
After briefing was completed in this ease, Pak raised the question of whether he was entitled to relief on his cancellation of removal petition pursuant to our recent decisions in Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir.2008) (en banc) and Quintero-Salazar v. Keisler, 506 F.3d 688 (9th Cir.2007). We decline to reach those issues in this petition for review, but remand that question to the BIA to consider these claims in the first instance.
PETITION DENIED IN PART; REMANDED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
The facts of this case are well-known to the parties. The district court found, after a non-jury trial, that William Brownfield breached his duty of loyalty to Keystone Fruit Marketing (KFM), his former employer, and that he tortiously interfered with KFM’s exclusive marketing contract with a client. At various points in this litigation, the district court also dismissed Brownfield’s counterclaim for a 2005 bonus allegedly owed to him, held that Brownfield’s customer list was not a trade secret as a matter of law, and declined to award prejudgment interest to KFM on its breach of duty of loyalty and tortious interference claims. Janet and William Brownfield appeal the first three of these rulings, while KFM cross-appeals the last two rulings. We affirm.
I. APPEAL OF JANET AND WILLIAM BROWNFIELD
The district court properly found that William Brownfield breached his duty of loyalty toward KFM. The undisputed facts demonstrate that while Brownfield was still employed as sales manager of KFM’s Walla Walla office, he actively assisted Grigg and Sons, a major KFM client, in severing its exclusive marketing relationship with KFM and setting up a competing marketing firm. These actions closely mirror the paradigm for a breach of loyalty cause of action under the Restatement (Second) of Agency. See Re*172statement (Second) of Agency § 393, cmt. e. (1958) (an employee is “not ... entitled to solicit customers for [a] rival business before the end of his employment];,] nor can he properly do other similar acts in direct competition with the employer’s business”); see generally id. at § 393 (“Unless otherwise agreed, an agent is subject to a duty not to compete with the principal concerning the subject matter of his agency”). We predict the Washington Supreme Court would follow the Restatement in this instance. See Kieburtz & Assocs. v. Rehn, 68 Wash.App. 260, 842 P.2d 985, 988 (1992) (“[Washington] courts have referenced the Restatement (Second) of Agency in many prior cases ... [and] our courts have accepted rules of agency which are similar to the rule outlined in section 393”); cf. Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1085 (9th Cir.2003) (predicting that Hawaii Supreme Court would adopt rule from Restatement (Second) of Agency since “Hawaii courts have recognized the authoritative nature of the Restatement”).
The undisputed facts also support the district court’s conclusion that Brownfield tortiously interfered with KFM’s exclusive marketing agreement with Grigg and Sons. The Washington Supreme Court has identified five elements necessary to a claim for tortious interference with contractual relations or business expectancy: (1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and (5) resultant damages. Commodore v. Univ. Mech. Contractors, Inc., 120 Wash.2d 120, 839 P.2d 314, 322 (1992). Brownfield argues that the undisputed facts of this case do not establish “intentional interference” or “improper purpose or ... means,” but this argument lacks merit. Washington case law makes clear that by helping design and working to facilitate a client’s departure from KFM while still in KFM’s employ, Brownfield “intentionally] interfered” for an “improper purpose” within the meaning of the tortious interference cause of action. See Titus v. Tacoma Smeltermen’s Union Local No. 25, 62 Wash.2d 461, 383 P.2d 504, 507-08 (1963).
Brownfield also argues that his tortious interference was privileged, but the undisputed facts belie any such claim. “The basic issue raised by the assertion of the defense is whether, under the circumstances of the particular case, the interferor’s conduct is justifiable, bearing in mind such factors as the nature of the interferor’s conduct, the character of the expectancy with which the conduct interferes, the relationship between the various parties, the interest sought to be advanced by the interferor, and the social desirability of protecting the expectancy or the interferor’s freedom of action.” Calbom v. Knudtzon, 65 Wash.2d 157, 396 P.2d 148, 152 (1964). Here, none of these factors supports a privilege defense.
The district court did not err in excluding the testimony of Brownfield’s expert witness or in granting partial summary judgment to KFM with respect to Brownfield’s counterclaim for unpaid bonus compensation from 2005. The motion in limine was granted because the factual basis for the expert testimony sought to be admitted was insufficient, see Fed R. Evid. 702, and partial summary judgment was granted because Brownfield failed to proffer any admissible evidence on the issue of KFM’s profits in 2005. See Fed R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., *173477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. KFM’S CROSS APPEAL
The district court properly ruled that the file “Billscustomerlist.xls” was not a trade secret under Washington’s Uniform Trade Secrets Act as a matter of law. Under Washington law, information cannot qualify as a trade secret if the information is “readily ascertainable by proper means.” RCW § 19.108.010(4)(a). Brownfield submitted evidence that all the information contained in “Billscustomerlist.xls” was publicly available in well-known trade circulations, and KFM did not submit any evidence to contradict this assertion. There was thus no genuine issue of material fact as to whether the information in the customer list file was readily ascertainable by proper means.
Finally, the district court did not abuse its discretion in declining to award prejudgment interest to KFM on its breach of loyalty and tortious interference claims. Washington law allows, but does not compel, an award of prejudgment interest where damages are based on “data which, if believed, makes it possible to compute the amount with exactness, without reliance on opinion or discretion.” Prier v. Refrigeration Engineering Co., 74 Wash.2d 25, 442 P.2d 621, 626 (1968). In this case, the district court exercised discretion in computing KFM’s damages for both the breach of loyalty and tortious interference claims, rendering prejudgment interest unavailable under Washington law. Moreover, even if prejudgment interest were available, the district court did not abuse its discretion in declining to award such interest. See Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1020 (9th Cir.2003).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Margaret DeBerry (“DeBerry”) appeals the district court’s decision affirming the Commissioner of Social Security’s denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq.
DeBerry asserts that the ALJ: (1) did not properly apply Social Security Regulation 83-20; (2) erred in rejecting the opinion of Dr. Ruth Lowengart; (3) failed to give specific clear and convincing reasons for finding that DeBerry’s testimony was not credible; (4) failed to account for the corroborating testimony of DeBerry’s husband; and (5) based his decision on an incomplete hypothetical question asked of the vocational expert. We find no prejudicial error and affirm.
1. SSR8S-20
The ALJ determined that DeBerry was not disabled prior to June 30, 1992, the last date she was insured. If the ALJ had found that DeBerry was disabled and that the medical evidence was not definite as to the onset date, SSR 83-20 would have required that the ALJ enlist a medical expert to assist in drawing inferences from the record to determine a remote date of onset. Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998); DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir.1991). However, because the ALJ found that DeBerry was not disabled, the need for a medical expert to assist in inferring an onset date did not arise. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir.2008) (“Because the ALJ found that Sam was not disabled ..., the question of when he became disabled did not arise and the procedures prescribed in *176SSR 83-20 did not apply.”) Moreover, nothing in Armstrong or DeLorme, relied upon by DeBerry, implies an obligation upon the ALJ to place great weight on, or defer to, medical expert testimony that is taken on the issue of an onset date. To the contrary, the ALJ is to evaluate medical expert testimony in the same manner as any other medical testimony. See Armstrong, 160 F.3d at 590.
DeBerry asserts in her summary of argument and in an argument heading in her opening brief that “[t]he ALJ also failed to properly apply SSR 99-2p, on CFS and fibromyalgia, to this case.” However, she does not argue that contention with any specificity in her opening brief. She neither cites to any evidence or legal authority nor explains what SSR 99-2p required the ALJ to do that he did not do. We, therefore, decline to consider the issue. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir.2008) (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir.2003) (noting that we “ordinarily will not consider matters on appeal that are not specifically and distinctly argued in an appellant’s opening brief’)).
2. Dr. Lowengart’s Testimony
The ALJ improperly used as a reason for discounting the opinion of Dr. Lowengart her “apparent extreme deviation from accepted medical practice.” The ALJ described several of Dr. Lowengart’s conclusions in her treatment notes as “substantially exceeding] the bounds of acceptable medical practice” and said that Dr. Lowengart’s views “appear to be grossly inconsistent with modern medicine/science.” These comments are unsupported in the record and appear based upon the ALJ’s own research and views. The ALJ erred in using his personal conclusion regarding Dr. Lowengart’s deviation from accepted medical practice as a factor in rejecting Dr. Lowengart’s opinion as unreliable. However, the error was harmless because the ALJ gave several specific and legitimate other reasons supported by substantial evidence for rejecting Dr. Lowengart’s opinion that DeBerry was disabled. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005).
First, the ALJ found that Dr. Lowengart’s conclusions are generally not supported by specific and complete clinical findings and are inconsistent with other medical reporting of record. The ALJ pointed to Dr. Lowengart’s own treatment notes, evaluations by other medical sources, and contemporaneous evidence from the medical record. Contradictions between a doctor’s opinions and medical findings are a legitimate reason to question credibility. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004) (ALJ may discredit treating physician’s opinion that is unsupported by medical findings). Second, the ALJ properly disregarded Dr. Lowengart’s opinion that DeBerry was incapable of full-time work since 1992 because the opinion was contradicted by other medical physicians who reviewed the records and reached a contrary conclusion and because “treating practitioners in the intervening years have noted periods when the claimant is pain free, feeling great, not limited in activities of daily living, with the claimant’s ‘history’ of fibromyalgia under reasonable control.” DeBerry contends that the “other medical physicians” were non-examining agency physicians and that evidence from them cannot constitute “substantial evidence” justifying the rejection of an opinion of an examining or treating physician, such as Dr. Lowengart. Although Dr. Lowengart is currently a treating physician, she has no personal knowledge of DeBerry’s condition during *177the applicable period and offered her opinion that DeBerry was disabled during that period based on a retrospective review of the medical records. Thus, for purposes of her disability opinion derived from her review of historic medical records, Dr. Lowengart was in no different position than any other non-treating physician. See Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir.1989) (noting that a treating physician offering a retrospective opinion, with no personal knowledge of the claimant’s historical condition, was little different from any non-treating physician with regard to that time period and was not entitled to enhanced deference merely because of his status as a treating physician). Therefore, the ALJ did not err in rejecting Dr. Lowengart’s opinion because it was contradicted by the opinions of two other physicians who had also reviewed the medical records.
3.DeBerry’s Testimony
The ALJ did not err in his treatment of DeBerry’s testimony because he gave clear and convincing reasons for disbelieving DeBerry’s testimony about the severity of her symptoms. First, the ALJ stated that DeBerry’s allegations of disability were disproportionate to the objective findings in the medical record, noting, among other things, that the medical records showed acute periods of illness of only short duration. Second, the ALJ noted that DeBerry’s reported activities, despite her impairments, were inconsistent with her claimed limitations. Third, the ALJ noted inconsistencies in DeBerry’s statements in the record, such as her contentions that she had difficulty standing and walking and had “markedly reduced” stamina which were contradicted by her report to a nurse practitioner shortly thereafter that she walked one to three miles a day.
4. Testimony of DeBerry’s Husband
The ALJ also did not err in his treatment of the lay testimony of DeBerry’s husband. Contrary to DeBerry’s argument, the ALJ accepted Mr. DeBerry’s testimony to the extent that it described Mr. DeBerry’s perceptions. The ALJ, however, found that his testimony did not provide a sufficient basis to alter the residual functional capacity assessment. Fairly considered, the testimony constitutes evidence that DeBerry’s symptoms were sufficiently severe so as to have “negatively impacted” Mr. and Mrs. DeBerry’s lives prior to her date last insured, but nothing within the testimony contradicts the residual functional capacity determination made by the ALJ.
5. Hypothetical Question Posed to Vocational Expert
The ALJ did not err in his posing of a hypothetical question to the vocational expert. The hypothetical contained a description of DeBerry’s age, education, and past relevant work experience, together with all of the residual functional capacity limitations found by the ALJ to be present. The question would have been improper only if the ALJ’s residual functional capacity assessment was erroneous, but it was not.
AFFIRMED.
xhis disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Victor Ruiz-Lopez appeals the 70-month sentence imposed by the district court following his open guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
The government was not bound by, and therefore did not breach, the fast-track plea agreement because the district court did not accept the plea agreement, Ruiz-Lopez did not plead guilty pursuant to the plea agreement, and Ruiz-Lopez did not detrimentally rely on any representation made by the government in the plea agreement when he pleaded guilty. See United States v. Kuchinski, 469 F.3d 853, 858 (9th Cir.2006). The district court properly disregarded the fast-track plea agreement because Ruiz-Lopez did not plead guilty pursuant to that agreement, and the district court never accepted it. See Fed.R.Crim.P. 11(c)(3)(A).
Ruiz-Lopez’s guilty plea was knowing and voluntary because the record demonstrates that he was aware of and understood the consequences of pleading guilty, including the fact that he was not pleading guilty pursuant to any plea agreement, and his guilty plea was not the result of any promises, threats, mistreatment, or misunderstanding. See Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir.1995).
Ruiz-Lopez’s sentence was procedurally reasonable because the district court followed proper sentencing procedure and adequately explained the sentence selected. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc). Moreover, the district court appropriately considered as a factor that Ruiz-Lopez did not plead guilty pursuant to any plea agreement. See United States v. Reina-Rodriguez, 468 F.3d 1147, 1158-59 (9th Cir.2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844, 851 n. 5 (9th Cir.2007).
Finally, Ruiz-Lopez’s sentence was substantively reasonable because the district court applied the facts of his case to each 18 U.S.C. § 3553(a) factor and came to a reasoned decision in imposing a 70-month sentence. See Carty, 520 F.3d at 991. The district court did not abuse its discretion in finding that a 70-month sen*180tence was sufficient, but not greater than necessary. See id. at 991, 993.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Sofia Maciel Pascacio (“Pascacio”) appeals her conviction for various cocaine-related drug offenses surrounding the use of her residence to receive drugs and transfer money for the purchase of the drugs on behalf of her daughter. She argues that the district court erred by denying her mistrial motion, and giving the jury a deliberate ignorance instruction unsupported by the evidence. We affirm.
A. Mistrial
Pascacio moved for a mistrial after a detective testified that guns and drugs were found at Pascacio’s residence when her son was arrested in an earlier unrelated incident.
A motion for mistrial is reviewed for abuse of discretion. United States v. Hagege, 437 F.3d 943, 959-60 (9th Cir.2006); see also United States v. Allen, 341 F.3d 870, 891 (9th Cir.2003); United States v. Frederick, 78 F.3d 1370, 1375 (9th Cir.1996). “[Cjourts have the power to declare a mistrial whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” United States v. Escalante, 637 F.2d 1197, 1202 (9th Cir.1980) (internal quotations omitted).
The district court did not abuse its discretion in denying the motion for a mistrial. Pascacio challenges the testimony of Detective Rivera insofar as Rivera discussed Pascacio’s son, who was at the time incarcerated in a county jail due to a separate drug conviction. Because the detective mentioned Pascacio’s son only briefly in his testimony, and his testimony was not referenced in closing arguments, any error denying a mistrial was harmless. See United States v. Jimenez-Dominguez, 296 F.3d 863, 867 (9th Cir.2002).
B. Deliberate Ignorance
Also known as a “Jeivell instruction,” a deliberate ignorance or willful blindness instruction is an alternate definition of acting “knowingly” under a given criminal statute. United States v. Jewell, 532 F.2d 697, 700 (9th Cir.1976). To act knowingly “is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question.” Id. A court’s decision to give a deliberate ignorance instruction is reviewed for abuse of discretion. United States v. Heredia, 483 F.3d 913, 922 (9th Cir.2007) (en banc).
In deciding whether to give a deliberate ignorance instruction, a court must first “determine whether the evidence of defendant’s mental state, if viewed in the light most favorable to the government, will support a finding of actual knowledge.” Heredia, 483 F.3d at 922. If the evidence supports this finding, “the court must instruct the jury on this theory.” Id. at 922. Second, if the court determines that “the jury could rationally find willful blindness even though it has rejected the government's evidence of actual knowledge,” it may give a Jewell instruction in addition to the actual knowledge instruction. Id.
*182The district court did not abuse its discretion by giving the jury a deliberate ignorance instruction, especially given the nature of Pascacio’s defense — that she had no direct involvement in the drug trafficking going on in her home. A rational juror could have found that, even if Pascacio did not have actual knowledge of the drug transactions going on in her home, she had suspicions that Maravilla and Barriente were engaging in drug transactions, and avoided the truth while providing assistance.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Greta Anderson (“Anderson”) sued American Airlines, Inc. (“American”) for *183employment discrimination under the California Fair Employment and Housing Act. The jury found that Anderson’s perceived mental disability was a motivating reason for her termination by American, awarding her $1 million in emotional distress damages and $238,333 in economic damages. The district court denied American’s motion for judgment as a matter of law and motion for a new trial (or in the alternative, remittur).
We review de novo the district court’s denial of a motion for judgment as a matter of law, but “[a] jury’s verdict must be upheld if it is supported by substantial evidence ... even if it is also possible to draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002). In making this determination, the court “must view all evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in the favor of the non-mover, and disregard all evidence favorable to the moving party that the jury is not required to believe.” Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir.2008) (citation omitted). “The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir.2006). Applying these standards, we conclude that the jury’s verdict was supported by substantial evidence, and thus we affirm the district court’s denial of American’s motion for judgment as a matter of law.
Our standard of review of the district court’s denial of a motion for a new trial is very deferential. “[W]e give great deference to the trial court’s denial of a motion for a new trial, and will reverse for a clear abuse of discretion only where there is an absolute absence of evidence to support the jury’s verdict.” Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir.2007) (internal citations and quotation marks omitted) (emphasis in original). Because there was substantial evidence to sustain the jury’s verdict, the district court did not clearly abuse its discretion in denying American a new trial.
American requested a new trial on the grounds that jury passion and prejudice infused all issues and resulted in excessive damages. However, “[w]e will not disturb an award of damages on appeal unless it is clearly unsupported by the evidence,” and it “must be affirmed unless it is ‘grossly excessive’ or ‘monstrous’ or ‘shocking to the conscience.’ ” Chalmers v. City of Los Angeles, 762 F.2d 753, 760 (9th Cir.1985) (citations omitted). Here, because the damages award was supported by the evidence and was not “grossly excessive” or “monstrous” or “shocking to the conscience,” the district court properly upheld the award.
American also appeals several trial issues. Jury instructions are reviewed for abuse of discretion and “must fairly and adequately cover the issues presented, must correctly state the law, and must not be misleading.” White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir.2002). Taken as a whole, the jury instructions were proper. The district court did not err in refusing American’s proposed jury instructions.
Finally, the evidentiary rulings of a district court are reviewed for abuse of discretion. Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004) (citation omitted). Here, the district court did not abuse its discretion in any of its evidentiary rulings. The decision to admit the disputed evidence fell within the district court’s discretion under Federal Rules of Evidence 402 and 403.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Ronald Dwane Brook appeals pro se a judgment entered after a four-day jury trial in his civil rights action alleging prison officials were deliberately indifferent to his medical needs. We affirm.
DISCUSSION
1. Dismissal of State Law Claim
The district court properly dismissed Brook’s claim that prison officials violated California Civil Code § 52.1. That statute provides for a civil action against any individual who “interferes by threats, intimidation, or coercion” with “rights secured by the Constitution or laws of the United States.” See Nelson v. City of Irvine, 143 F.3d 1196, 1206 (9th Cir.1998) (quoting § 52.1). The acts alleged — that defendants did not respond timely to Brook’s requests, grievances and appeals — are not “threats, intimidation, or coercion” for purposes of § 52.1.
2. Dismissal of the Warden in his Individual Capacity
Brook’s conclusory allegations against the warden are insufficient to state a constitutional claim against him in his individual capacity. There is nothing to indicate the warden was personally involved in processing requests for medical care or responding to inmate grievances or appeals. See Bressi v. Ford, 575 F.3d 891, 899 n. 8 (9th Cir.2009) (noting “state actor must be personally involved to some extent in the deprivation of a federal right”). Moreover, supervisory liability may be imposed in an individual capacity only when the supervisor participated in or directed the violations, or knew of the violations of subordinates and failed to act to prevent them. Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.2009).
3. Discovery Rulings
The district court properly denied Brook’s motion to compel discovery of “[a]ny and all grievances, complaints, *186or other documents received by the defendants ... concerning mistreatment of inmates.” The request was overbroad, immaterial to Brook’s particular circumstances, and overly burdensome to defendants. See Nugget Hydroelectric, L.P. v. Pacific Gas and Elec. Co., 981 F.2d 429, 438-39 (9th Cir.1992) (noting court is not required to compel disclosure that is “unnecessarily burdensome and overly broad” with minimal chance of relevant evidence).
4. Witnesses
The district court did not abuse its discretion by limiting Brook’s right to confer with inmate witnesses, call those witnesses, or solicit testimony regarding their complaints with prison officials. See Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1071 (9th Cir.2005) (holding there was no abuse of discretion in limiting the number of witnesses or the subject-matter of their testimony); see also Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (noting trial judge has discretion to limit cumulative, repetitive, or irrelevant testimony, control the scope of examination of witnesses, and limit rebuttal testimony).
5. Jury Instruction
The district court did not abuse its discretion by refusing to give a “negligence-per-se” jury instruction. See Millenkamp v. Davisco Foods Int'l, Inc., 562 F.3d 971, 981-82 (9th Cir.2009) (noting standard of review). As the district court explained, Brook pleaded a common law negligence theory and “no strict liability claim or cause of action ... was ever introduced in this case.”
6. Ex Parte Communications
Brook claims his due process rights were violated by the court’s ex parte discussions with defense counsel. See Guenther v. Commissioner, 889 F.2d 882, 884 (9th Cir.1989) (noting ex parte contact may violate a litigant’s right to due process if the litigant was thereby denied the “opportunity to participate in determination of the relevant issues” and suffered unfair prejudice). The district court, however, categorically denied any “such substantive ex parte discussion with defense counsel in this case — on or off the record.” The court surmised there may have been “a couple of times during the trial when plaintiff was brought to the courtroom late because of custodial logistics” and there may have been “non-substantive, off-the-record banter with those present in court at that time while awaiting plaintiff.” We agree with the district court that such minor, casual communication does not amount to an impermissible ex parte contact.
7. Perjured Testimony
Brook sought a new trial based on his allegation that one defendant either testified falsely or manufactured falsified evidence regarding a telephone log of inmates’ requests for dental care, the existence of which had been denied during discovery. See Jones v. Aero/Chem Corp., 921 F.2d 875, 878-79 (9th Cir.1990) (noting new trial may be appropriate if the party proves by clear and convincing evidence that the verdict was obtained through discovery misconduct that prevented the party from fully and fairly presenting its case). The trial court, however, examined the records at issue and correctly concluded they were consistent with the testimony and there was no discovery violation.
8. Appointment of Counsel
The district court properly denied Brook’s repeated requests for appointment *187of counsel. There were no “exceptional circumstances” to justify such an appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.2009) (explaining requirement of exceptional circumstances).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Defendant-Appellant Mo Thi Pham appeals her conviction in the district court for thirty-five counts of health care fraud in violation of 18 U.S.C. § 1347. On appeal, Pham argues that the evidence the prosecution presented was insufficient as a matter of law. We review de novo the sufficiency of the evidence supporting her conviction. See United States v. Ruiz, 462 F.3d 1082, 1087-88 (9th Cir.2006). “The evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dearing, 504 F.3d 897, 900 (9th Cir.2007) (quotation marks omitted). “The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict.” United States v. Mares, 940 F.2d 455, 458 (9th Cir.1991).
To prove that Pham acted willfully, “the Government must prove that the defendant acted with knowledge that [her] conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (internal quotation marks omitted). “Fraudulent intent may be, and often must be, proven by circumstantial evidence.” United States v. Rasheed, 663 F.2d 843, 848 (9th Cir.1981).
The government presented sufficient evidence of Pham’s knowledge and intent to defraud Medicare. The government presented testimony that Pham played an active role in calculating the amount each recruiter was paid based on the number of people the recruiter brought to the doctors’ offices. Pham withdrew large sums of money every few days to pay the recruiters and paid them personally at her business. In addition, trial testimony indicated that Pham visited and supervised Dr. Khatibloo’s office three to four times a week, instructed employees to keep track of patients and recruiters, and received over $1 million in eight months for her participation in the scheme. A jury could reasonably have inferred intent to defraud Medicare from these practices.
Specifically, Pham argues that the evidence was insufficient to support a finding of her knowledge and fraudulent intent because there was no evidence that she personally performed certain tasks such as hiring doctors, fixing salaries, billing Medicare, or forging documents. The government, however, was not required to prove that Pham was a principal actor in the scheme, only that she had the requisite knowledge and intent to defraud a health benefit program. See United States v. Stapleton, 293 F.3d 1111, 1117-18 (9th Cir.2002).
Lastly, Pham argues that “[t]he government asked the jury to assume [her] culpability ... largely on the basis of name similarity.” This argument is unpersuasive, however, because the government presented several witnesses who identified Pham in the courtroom as “Lisa” and “Hieu” and testified that she was a participant in the scheme. The government also admitted into evidence a copy of Pham’s *191passport, which indicated that her name was Lisa Hughes. This evidence was sufficient for a jury to rationally determine that Pham also went by the names “Lisa” and “Hieu.”
We conclude that the government presented sufficient evidence for the jury to convict Pham of health care fraud under 18 U.S.C. § 1347. The judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION
This is an appeal from an order of the district court terminating a consent decree regarding access to the courts. However, we lack jurisdiction because the notice of appeal, which was filed April 5, 2007, was not timely.
Specifically: (1) The district court order terminating the Access to the Courts Decree of June 23, 1973, was entered on November 16, 2005, but no separate judgment was entered; (2) The district court order terminating, in principal part, the Disciplinary Procedures Decree, as amended August 30, 1977, was entered August 30, 2006, but, again, no separate judgment was entered. Because the first of those finally terminated the Access Decree, 150 days later a separate judgment regarding that decree was deemed entered,1 unless that order was not final because a further part of the overall proceeding at that time dealt with questions about terminating the Disciplinary Procedures Decree. However, even if that is assumed, the second order did finally dispose of the issues regarding the Disciplinary Procedures Decree, and the separate judgment would be deemed entered 150 days thereafter. In neither case was a notice of appeal filed within 30 days of the deemed *157entry date. A further later entry of a separate judgment on March 8, 2007, after the relevant dates had passed, was not sufficient to establish a new appeal period. See Stephanie-Cardona, 476 F.3d at 704. We note that the March 8, 2007, order indicates that the district court had considered the prior orders final when entered; at the time of their entry, it did not even think that a document spelling out a separate judgment was required.
Therefore, this appeal is DISMISSED for lack of appellate jurisdiction.
. See Fed. R.App. P. 4(a)(7)(A)(ii); see also Menken v. Emm, 503 F.3d 1050, 1055-56 (9th Cir.2007); Stephanie-Cardona LLC v. Smith’s Food & Drug Centers, Inc., 476 F.3d 701, 703-04 (9th Cir.2007).
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MEMORANDUM *
Indiana Electrical Workers Pension Trust Fund, Service Employees International Union (“SEIU”) Affiliates’ Officers and Employees Pension Fund, SEIU National Industry Pension Fund, and Pension Plan for Employees of SEIU (collectively “IEW”), appeal from the district court’s order dismissing their Second Amended Complaint (“SAC”) for failure to allege demand futility under Federal Rule of Civil Procedure 23.1.
The SAC challenged the propriety of the Hewlett-Packard Company’s (“HP” or the “Company”) Board of Directors’s (“Board”) decision to make a $21.4 million payment to former HP Chief Executive Officer (“CEO”) Carleton S. Fiorina (“Fiorina”), as part of a settlement agreement, after she was terminated as CEO. The SAC asserted direct claims on behalf of HP’s shareholder and derivative claims on behalf of the Company. The district court, however, concluded that all the claims were derivative, and that dismissal of all claims was required for failure to allege demand futility. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), accepting as true the complaint’s factual allegations and construing the pleadings in the light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030-31 (9th Cir.2008). An order dismissing a shareholder derivative suit for failure to make a demand or to allege demand futility under Rule 23. 1, however, is reviewed for an abuse of discretion. Potter v. Hughes, 546 F.3d 1051, 1056 (9th Cir.2008).
1. Failure to Allege Demand Futility — IEW’s Derivative Claims (Counts IV-X)
IEW first argues that the district court erred in concluding that IEW failed to allege demand futility for Counts IV-X, which sought relief on behalf of the Company. We disagree.
“Pursuant to Rule 23. 1, a putative derivative plaintiff can initiate a derivative action only if he or she makes an adequate demand on the Board under applicable state law.” Potter, 546 F.3d at 1055; see also In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 989-90 (9th Cir.1999). Where, as here, shareholders failed to demand action from the board, they must “plead with particularity the reasons why such demand would have been futile.” Silicon Graphics, 183 F.3d at 989-90. To show demand futility, IEW was required to allege particularized facts giving rise to a reasonable doubt that the challenged transaction — here, the Board’s decision to make the $21.4 million payment — was the product of a valid exercise of business judgment.1 See id. To do so, IEW was required to present allegations that defeat the well-recognized presumption “that in making a business decision the directors of a corporation act[ ] on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.” Aronson v. Lewis, 473 *160A.2d 805, 812 (Del.1984), rev’d on other grounds by Brehm v. Eisner, 746 A.2d 244, 248 (Del.2000).
We agree with the district court that IEW failed to allege facts sufficient to rebut this presumption, and therefore failed to allege demand futility. IEW’s claims center around IEW’s contention that the Board, in making the $21.4 million payment, violated the terms of HP’s Severance Policy and Program, which required that HP obtain shareholder approval for severance payments exceeding 2.99 times the executive’s salary and bonus. Since the $21.4 million exceeded this limitation, IEW argues, the Board’s decision gave rise to a reasonable doubt that the payment was the product of a valid exercise of business judgment.
As the district court correctly concluded, however, IEW failed to allege particularized facts casting doubt upon the propriety of the approximately $21.4 million termination package, because only approximately $14.1 million of the overall payment was severance under HP’s Severance Policy and Program, and this amount did not exceed the 2.99 limit set forth in the Severance Policy. The remaining approximately $7.4 million was Fiorina’s entitlement under HP’s Long-Term Performance Cash (“LTPC”) program, an incentive program which enabled executives to earn cash awards if HP met certain financial targets. IEW’s principal challenge, therefore, is to the Board’s classification of the $7.4 million as an LTPC payment, instead of a severance payment subject to the terms of the Severance Program and Policy.
IEW contends that Fiorina was ineligible to receive payments under the LTPC program, and that therefore the entire $21.4 million constituted a “severance payment” awarded in violation of HP’s Severance Policy. We examine, and reject IEW’s arguments.
First, IEW argues that Fiorina was ineligible to receive payments under the LTPC program because she was involuntarily terminated and was not employed by HP throughout the entire LTPC payment vesting period, as required by the LTPC program. This argument lacks merit. Although the LTPC program’s forfeiture provisions did state that, generally, involuntarily terminated employees would not be eligible to receive LTPC payments, it is undisputed that the LTPC program was adopted under HP’s 2000 Stock Plan. Under the Stock Plan, the Plan Administrator, or HP Board, was afforded broad discretion to adjust program payments, including accelerating the vesting period or waiving forfeiture provisions, under the Plan. We fail to see how this broad grant of discretion can be construed to curtail the Board’s authority to accelerate the vesting period or waive forfeiture of payments earned under the LTPC program.
Second, the LTPC program authorized the Compensation Committee of the HP Board to increase or decrease LTPC payments in exceptional circumstances, provided that the employee in question was not a “covered employee” under § 162(m)(3) of the Internal Revenue Code. IEW contends that Fiorina was a covered employee, and therefore ineligible to receive discretionary LTPC payments in exceptional circumstances. Again, however, we disagree.
Section 162(m) provides, in relevant part, that “[t]he term ‘covered employee’ means any employee of the taxpayer if ... the total compensation of such employee for the taxable year is required to be reported to shareholders under the Securities Exchange Act of 1934 by reason of such employee being among the 4 highest compensated officers for the taxable year (other than the chief executive officer).” *16126 U.S.C. § 162(m)(3). Whether an employee is among the four highest compensated officers, in turn, is determined by reference to total annual “salary” and “bonus” for the last completed fiscal year. See 17 C.F.R. § 229.402, and related instructions. The LTPC was a program intended to increase incentive for HP performance over an extended period. It was defined by HP as a unique program, and payments made pursuant to it which were not part of an executive’s “salary” or “bonus.” The district court, therefore, correctly concluded that Fiorina’s LTPC payment was properly classified as “other compensation,” and not “salary” or “bonus” for the purposes of determining whether she was among the four highest compensated employees and, in turn, whether she was a covered employee. The district court, thus, did not err in concluding that the Plan Administrator, or HP Board, could exercise its discretion to increase Fiorina’s LTPC payment in exceptional circumstances such as those surrounding her termination.
Third, IEW argues that Fiorina’s severance payment should have been reduced by the payment she received under the LTPC program. We are not so persuaded. Although the Severance Program provided for an offset of severance payments by any cash severance benefits paid under other HP plans, certain payments that were consistent with Company practices were excluded from this offset provision. IEW has failed to allege particularized facts showing that the Board’s exercise of discretion in making Fiorina’s payment was inconsistent with HP practices. We therefore agree with the district court that the Board could properly decline to offset her severance payment by her LTPC payment.
Last, IEW argues that HP made two “admissions,” essentially conceding that the entire $21.4 million payment was “severance,” which, in turn, gave rise to a factual dispute that precluded dismissal for failure to state a claim. This argument lacks merit. In light of the detailed breakdown of Fiorina’s $21.4 million payment filed with the SEC and made available to shareholders, we cannot say that an offhand comment by one Board member and the broad description of the entire payment as “severance” in a proxy statement raise any such factual dispute.
In sum, IEW has failed to allege particularized facts showing the impropriety of the $21.4 million payment that Fiorina received when she was terminated from her position as HP’s CEO. IEW has thus failed to allege facts creating a reasonable doubt that the Board’s decision to make the payment was the product of a valid exercise of business judgment. The district court therefore correctly concluded that IEW failed to allege demand futility, and accordingly, properly dismissed IEW’s derivative claims.2
*162
2. Whether Counts I-III Were Direct, Not Derivative Claims
IEW also challenges the district court’s dismissal of Counts I-III of the SAC, in which IEW alleged breach of contract, promissory fraud, and breach of the fiduciary duty of disclosure. The district court concluded that because Counts I-III failed to allege facts indicating direct harm to the shareholders, Counts I-III were actually derivative, not direct claims, and must therefore be dismissed for the same reasons as the other counts. We agree with the district court’s conclusion.
To determine whether shareholder claims are direct or derivative, we must examine both who suffered the harm alleged — the shareholders or the corporation — and who would receive the benefit of any remedy. Feldman v. Cutaia, 951 A.2d 727, 732 (Del.2008). Here, the success of Counts I-III — -which contain allegations that the Board’s deceptive behavior regarding Fiorina’s LTPC payment amounted to false promises and failure to disclose material information — depend on the success of IEW’s argument that the Board violated the terms of HP’s Severance Program, Severance Policy, or LTPC program. For the reasons discussed above this argument fails. IEW, therefore, has failed to allege conduct causing direct harm to shareholders. Counts I-III, like the other dismissed counts, fail to create a reasonable doubt that the Board’s decision was the product of a valid exercise of business judgment. Counts I-III were therefore properly dismissed for failure to allege demand futility.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. The second way in which a plaintiff may show demand futility — by alleging particularized facts creating a reasonable doubt that the directors were disinterested and independent, see Silicon Graphics, 183 F.3d at 990—is not at issue in this appeal.
. IEW also argues that in approving the $21.4 million payment, the Board exceeded its authority and therefore acted ultra vires. Because the success of this argument turns on the success of IEW’s related contention that the $7.4 million was in fact a severance payment, we need not address it. Moreover, because we affirm the district court's ruling that IEW failed to allege demand futility, we need not reach the additional arguments raised by HP and the Board, including whether the SAC failed to allege sufficient facts to satisfy the heightened pleading standard under § 102(b)(7) of the Delaware General Corporate Law, see 8 Del. C. § 102(b)(7), whether there is any merit to the substantive allegations in the complaint, and whether the Board’s decision was protected by the business judgment rule even if Fiorina’s termination package did not comply with all the provisions of HP's Severance Policy, Severance Program, or LTPC program.
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MEMORANDUM **
Rashawn Bias appeals the district court’s denial of his suppression motion following the entry of a conditional guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). We affirm.
I
Police officers received undisputedly reliable and specific information from emergency medical technicians that Bias was carrying a concealed weapon. The police searched for Bias, and observed him and a companion take what they believed to be an evasive maneuver. Because Bias was armed, the police detained him at gunpoint, ordered him to the ground, and handcuffed him. The police asked if he was armed, and Bias answered in the affirmative. The gun was located in his waistband, as described by the paramedics.
Because the police had reliable, detailed, and articulable facts, the totality of the circumstances supports the district court’s finding that the police had reasonable suspicion to conduct an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Bias contends that the stop was illegal under United States v. Ubiles, 224 F.3d 213 (3d Cir.2000) and United States v. Roch, 5 F.3d 894 (5th Cir.1993). However, these cases are distinguishable. Both Ubiles and Roch involved tips from anonymous informants, as contrasted with the paramedics in this case who actually observed the weapon. Further, in this case, the Terry stop was concluded in a county in which less than 1% of the population had a permit to carry a concealed weapon. Finally, neither Ubiles nor Roch involved a situation in which the defendant made what appeared to be an evasive maneuver prior to the Terry stop, a factor that the Supreme Court found important in Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
II
Bias also claims that, even if reasonable suspicion supported his seizure by the police, that the police actions in this case rose to the level of an arrest under Washington v. Lambert, 98 F.3d 1181 (9th Cir.1996). However, the stop in this case did not constitute an impermissible arrest, *164because Washington v. Lambert specifically suggested that an intrusive stop may be reasonable “where the police have information that the suspect is currently armed.” Id. at 189 (introducing a multi-factor test). Here, the police had reliable witness testimony that Bias was carrying a concealed weapon.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*165MEMORANDUM **
Marie Chellino appeals the district court’s order granting summary judgment in favor of Kaiser Foundation Health Plan, Inc. (“Kaiser”) in her action challenging the decision by Aetna Life Insurance Company (“Aetna”) to terminate her long-term disability benefits under the Kaiser Permanente Welfare Benefits Plan (“Plan”). We reverse the grant of summary judgment and remand to the district court to enter summary judgment in favor of Chellino and to order the reinstatement of her long-term disability benefits.
I
We review “a district court’s ‘choice and application’ of the appropriate standard for reviewing benefits decisions by an ERISA plan administrator” de novo. Sznewajs v. U.S. Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727, 732 (9th Cir.2009) (quoting Pannebecker v. LibeRy Life Assurance Co. of Boston, 542 F.3d 1213, 1217 (9th Cir.2008)). Although the district court otherwise recognized the correct standard of review, it should not have relied on Jordan v. Nothrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869 (9th Cir.2004), for the proposition that it was required to uphold Aetna’s decision if there was “any reasonable basis” for it. After the district court opinion in this case, we made clear that Jordan applies only in the absence of a conflict of interest. Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 629 (9th Cir.2009). Where there is a conflict of interest, courts “must consider numerous case-specific factors, including the administrator’s conflict of interest, and reach a decision as to whether discretion has been abused by weighing and balancing those factors together.” Id. at 940 (citing Metro. Life Ins. Co. v. Glenn, - U.S. -, 128 S.Ct. 2343, 2351-52, 171 L.Ed.2d 299 (2008)).
II
Because the district court applied an incorrect standard, we consider de novo whether, taking into account the conflict of interest as well as other factors, Aetna’s termination of benefits was an abuse of discretion. See Montour, 582 F.3d at 942. Among the factors pertinent to our determination are: Aetna’s conflict of interest, the reliability of the medical examiners’ reports, the quality and quantity of the medical evidence, and the addition for the first time on appeal of a new reason for denying benefits.
1. The surveillance footage and the opinions of Drs. Krames and Marks do not support Aetna’s decision to terminate Chellino’s long-term disability benefits. After considering Chellino’s self-reported limitations, Dr. Krames issued a report opining that Chellino was “100% disabled” due to her fibromyalgia. At Aetna’s request, Dr. Krames subsequently viewed surveillance footage of Chellino’s outdoor activities. He then issued a supplemental report opining that Chellino was not “100% disabled” but was capable of sedentary work, because her subjective complaints of pain and her stated limitations were inconsistent with her surveilled activities. After reviewing Chellino’s medical file and the surveillance footage, Dr. Marks agreed.
In fact, Chellino’s activities as shown on the surveillance footage are consistent with her subjective complaints and self-reported limitations. During her examination, Chellino told Dr. Krames that she can drive herself short distances; can shop for *166herself, but requires assistance with large items; can go on walks for up to an hour at a time; can carry objects weighing up to two pounds, mostly against her chest; and can go horseback riding two to three times a week, riding for approximately 15-20 minutes at a time. The surveillance footage shows Chellino doing exactly that: Chellino drives herself short distances, goes shopping and receives assistance with her bags, goes on two approximately-20 minute walks, and retrieves her mail. The footage also shows Chellino going to the horse stables twice, during which time she carries what appears to be an empty plastic bucket against her torso; carries what appears to be rope or horse reins; carries two small, unidentified objects; lifts, opens, and shakes a relatively empty bag; bends slightly at the waist a few times; stands and interacts with others for short periods of time; mounts a horse after first stepping onto a raised platform; rides two slow horses; and leads horses.
Chellino does not, as Dr. Krames wrote, “pull” horses; she walks alongside the horses while holding onto a lead. Nor does she lift or carry “relatively heavy” objects; all of the objects that she lifts and carries — rope or reins, two small, unidentified objects, an empty plastic bucket, and a relatively empty bag — appear to be -within her stated limitation of not carrying objects that weigh more than two pounds. Chellino also, as she had reported, wore wrist braces and, at times, a neck brace. Furthermore, that Chellino walks without antalgic gait cannot explain Dr. Krames’ changed opinion, as she walked without antalgic gait when Dr. Krames opined that she was totally disabled. Moreover, although Dr. Krames wrote that Chellino does not appear to exhibit “any degree of pain behavior” during her surveilled activities, Chellino told Dr. Krames that pain limits her activities only “approximately 70% of the time” and that she is “able to cope with her pain fairly well.” See Jordan, 370 F.3d at 872 (“[T]he symptoms [of fibromyalgia] can be worse at some times than others.”), abrogated on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir.2006) (en banc) and Montour, 582 F.3d at 941-42. Dr. Marks’s report is unreliable for these same reasons.
2. Dr. Marks’s reliance on the Functional Capacity Evaluation (“FCE”) is also misplaced. Aetna considered the FCE invalid. In addition, Dr. Marks discounted Dr. Dixit’s opinion that Chellino was “totally and permanently disabled” and that there was “absolutely nothing” about Chellino’s surveilled activities that would lead him to believe otherwise, because Dr. Marks believed that Dr. Dixit had not examined Chellino. The first line of Dr. Dixit’s report indicates that he did examine Chellino. In sum, no aspect of Dr. Marks’s opinion constitutes reliable evidence.
3. In making its adverse benefits determination, Aetna relied in part on Chellino’s failure to provide objective medical evidence of her fibromyalgia. “[F]ailure to produce [objective] evidence that simply is not available” is a consideration that “bear[s] on the degree of deference ... [to be] accord[ed] [Aetna’s] decision....” Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 873 (9th Cir.2008). As “fibromyalgia’s cause or causes are unknown, there is no cure, and ... its symptoms are entirely subjective,” Jordan, 370 F.3d at 872, “[objective tests [such as are] administered to rule out other diseases ... do not establish the presence or absence of fibromyalgia.” Id. “The only symptom that discriminates between it and other syndromes and diseases is multiple tender spots, which [are] eighteen fixed locations on the body that when pressed firmly cause the patient to flinch.” Id. *167Chellino was found by Dr. Krames to be tender at all eighteen points.
4. Aetna’s vocational assessment does not constitute reliable evidence of Chellino’s functional ability, as it was dependent on an Aetna physician’s adoption of Dr. Krames’s inaccurate report.
After examining Chellino and viewing the surveillance footage, Chellino’s treating physician, her physical therapist, and Dr. Dixit all opined that Chellino was totally disabled and was unable to engage in gainful employment. Given Aetna’s inherent conflict of interest, reliance on unsupported evidence, and failure to credit evidence not so flawed, Aetna’s decision to terminate Chellino’s benefits was an abuse of discretion. Accordingly, we reverse the district court’s summary judgment in favor of Aetna and remand to the district court to enter summary judgment in favor of Chellino and to order the reinstatement of her long-term disability benefits under the terms of the Plan.
REVERSED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
The facts of this case are well-known to the parties. The district court found, after a non-jury trial, that William Brownfield breached his duty of loyalty to Keystone Fruit Marketing (KFM), his former employer, and that he tortiously interfered with KFM’s exclusive marketing contract with a client. At various points in this litigation, the district court also dismissed Brownfield’s counterclaim for a 2005 bonus allegedly owed to him, held that Brownfield’s customer list was not a trade secret as a matter of law, and declined to award prejudgment interest to KFM on its breach of duty of loyalty and tortious interference claims. Janet and William Brownfield appeal the first three of these rulings, while KFM cross-appeals the last two rulings. We affirm.
I. APPEAL OF JANET AND WILLIAM BROWNFIELD
The district court properly found that William Brownfield breached his duty of loyalty toward KFM. The undisputed facts demonstrate that while Brownfield was still employed as sales manager of KFM’s Walla Walla office, he actively assisted Grigg and Sons, a major KFM client, in severing its exclusive marketing relationship with KFM and setting up a competing marketing firm. These actions closely mirror the paradigm for a breach of loyalty cause of action under the Restatement (Second) of Agency. See Re*172statement (Second) of Agency § 393, cmt. e. (1958) (an employee is “not ... entitled to solicit customers for [a] rival business before the end of his employment];,] nor can he properly do other similar acts in direct competition with the employer’s business”); see generally id. at § 393 (“Unless otherwise agreed, an agent is subject to a duty not to compete with the principal concerning the subject matter of his agency”). We predict the Washington Supreme Court would follow the Restatement in this instance. See Kieburtz & Assocs. v. Rehn, 68 Wash.App. 260, 842 P.2d 985, 988 (1992) (“[Washington] courts have referenced the Restatement (Second) of Agency in many prior cases ... [and] our courts have accepted rules of agency which are similar to the rule outlined in section 393”); cf. Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1085 (9th Cir.2003) (predicting that Hawaii Supreme Court would adopt rule from Restatement (Second) of Agency since “Hawaii courts have recognized the authoritative nature of the Restatement”).
The undisputed facts also support the district court’s conclusion that Brownfield tortiously interfered with KFM’s exclusive marketing agreement with Grigg and Sons. The Washington Supreme Court has identified five elements necessary to a claim for tortious interference with contractual relations or business expectancy: (1) the existence of a valid contractual relationship or business expectancy; (2) that defendants had knowledge of that relationship; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) that defendants interfered for an improper purpose or used improper means; and (5) resultant damages. Commodore v. Univ. Mech. Contractors, Inc., 120 Wash.2d 120, 839 P.2d 314, 322 (1992). Brownfield argues that the undisputed facts of this case do not establish “intentional interference” or “improper purpose or ... means,” but this argument lacks merit. Washington case law makes clear that by helping design and working to facilitate a client’s departure from KFM while still in KFM’s employ, Brownfield “intentionally] interfered” for an “improper purpose” within the meaning of the tortious interference cause of action. See Titus v. Tacoma Smeltermen’s Union Local No. 25, 62 Wash.2d 461, 383 P.2d 504, 507-08 (1963).
Brownfield also argues that his tortious interference was privileged, but the undisputed facts belie any such claim. “The basic issue raised by the assertion of the defense is whether, under the circumstances of the particular case, the interferor’s conduct is justifiable, bearing in mind such factors as the nature of the interferor’s conduct, the character of the expectancy with which the conduct interferes, the relationship between the various parties, the interest sought to be advanced by the interferor, and the social desirability of protecting the expectancy or the interferor’s freedom of action.” Calbom v. Knudtzon, 65 Wash.2d 157, 396 P.2d 148, 152 (1964). Here, none of these factors supports a privilege defense.
The district court did not err in excluding the testimony of Brownfield’s expert witness or in granting partial summary judgment to KFM with respect to Brownfield’s counterclaim for unpaid bonus compensation from 2005. The motion in limine was granted because the factual basis for the expert testimony sought to be admitted was insufficient, see Fed R. Evid. 702, and partial summary judgment was granted because Brownfield failed to proffer any admissible evidence on the issue of KFM’s profits in 2005. See Fed R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., *173477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. KFM’S CROSS APPEAL
The district court properly ruled that the file “Billscustomerlist.xls” was not a trade secret under Washington’s Uniform Trade Secrets Act as a matter of law. Under Washington law, information cannot qualify as a trade secret if the information is “readily ascertainable by proper means.” RCW § 19.108.010(4)(a). Brownfield submitted evidence that all the information contained in “Billscustomerlist.xls” was publicly available in well-known trade circulations, and KFM did not submit any evidence to contradict this assertion. There was thus no genuine issue of material fact as to whether the information in the customer list file was readily ascertainable by proper means.
Finally, the district court did not abuse its discretion in declining to award prejudgment interest to KFM on its breach of loyalty and tortious interference claims. Washington law allows, but does not compel, an award of prejudgment interest where damages are based on “data which, if believed, makes it possible to compute the amount with exactness, without reliance on opinion or discretion.” Prier v. Refrigeration Engineering Co., 74 Wash.2d 25, 442 P.2d 621, 626 (1968). In this case, the district court exercised discretion in computing KFM’s damages for both the breach of loyalty and tortious interference claims, rendering prejudgment interest unavailable under Washington law. Moreover, even if prejudgment interest were available, the district court did not abuse its discretion in declining to award such interest. See Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1020 (9th Cir.2003).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Margaret DeBerry (“DeBerry”) appeals the district court’s decision affirming the Commissioner of Social Security’s denial of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq.
DeBerry asserts that the ALJ: (1) did not properly apply Social Security Regulation 83-20; (2) erred in rejecting the opinion of Dr. Ruth Lowengart; (3) failed to give specific clear and convincing reasons for finding that DeBerry’s testimony was not credible; (4) failed to account for the corroborating testimony of DeBerry’s husband; and (5) based his decision on an incomplete hypothetical question asked of the vocational expert. We find no prejudicial error and affirm.
1. SSR8S-20
The ALJ determined that DeBerry was not disabled prior to June 30, 1992, the last date she was insured. If the ALJ had found that DeBerry was disabled and that the medical evidence was not definite as to the onset date, SSR 83-20 would have required that the ALJ enlist a medical expert to assist in drawing inferences from the record to determine a remote date of onset. Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998); DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir.1991). However, because the ALJ found that DeBerry was not disabled, the need for a medical expert to assist in inferring an onset date did not arise. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir.2008) (“Because the ALJ found that Sam was not disabled ..., the question of when he became disabled did not arise and the procedures prescribed in *176SSR 83-20 did not apply.”) Moreover, nothing in Armstrong or DeLorme, relied upon by DeBerry, implies an obligation upon the ALJ to place great weight on, or defer to, medical expert testimony that is taken on the issue of an onset date. To the contrary, the ALJ is to evaluate medical expert testimony in the same manner as any other medical testimony. See Armstrong, 160 F.3d at 590.
DeBerry asserts in her summary of argument and in an argument heading in her opening brief that “[t]he ALJ also failed to properly apply SSR 99-2p, on CFS and fibromyalgia, to this case.” However, she does not argue that contention with any specificity in her opening brief. She neither cites to any evidence or legal authority nor explains what SSR 99-2p required the ALJ to do that he did not do. We, therefore, decline to consider the issue. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir.2008) (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir.2003) (noting that we “ordinarily will not consider matters on appeal that are not specifically and distinctly argued in an appellant’s opening brief’)).
2. Dr. Lowengart’s Testimony
The ALJ improperly used as a reason for discounting the opinion of Dr. Lowengart her “apparent extreme deviation from accepted medical practice.” The ALJ described several of Dr. Lowengart’s conclusions in her treatment notes as “substantially exceeding] the bounds of acceptable medical practice” and said that Dr. Lowengart’s views “appear to be grossly inconsistent with modern medicine/science.” These comments are unsupported in the record and appear based upon the ALJ’s own research and views. The ALJ erred in using his personal conclusion regarding Dr. Lowengart’s deviation from accepted medical practice as a factor in rejecting Dr. Lowengart’s opinion as unreliable. However, the error was harmless because the ALJ gave several specific and legitimate other reasons supported by substantial evidence for rejecting Dr. Lowengart’s opinion that DeBerry was disabled. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005).
First, the ALJ found that Dr. Lowengart’s conclusions are generally not supported by specific and complete clinical findings and are inconsistent with other medical reporting of record. The ALJ pointed to Dr. Lowengart’s own treatment notes, evaluations by other medical sources, and contemporaneous evidence from the medical record. Contradictions between a doctor’s opinions and medical findings are a legitimate reason to question credibility. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004) (ALJ may discredit treating physician’s opinion that is unsupported by medical findings). Second, the ALJ properly disregarded Dr. Lowengart’s opinion that DeBerry was incapable of full-time work since 1992 because the opinion was contradicted by other medical physicians who reviewed the records and reached a contrary conclusion and because “treating practitioners in the intervening years have noted periods when the claimant is pain free, feeling great, not limited in activities of daily living, with the claimant’s ‘history’ of fibromyalgia under reasonable control.” DeBerry contends that the “other medical physicians” were non-examining agency physicians and that evidence from them cannot constitute “substantial evidence” justifying the rejection of an opinion of an examining or treating physician, such as Dr. Lowengart. Although Dr. Lowengart is currently a treating physician, she has no personal knowledge of DeBerry’s condition during *177the applicable period and offered her opinion that DeBerry was disabled during that period based on a retrospective review of the medical records. Thus, for purposes of her disability opinion derived from her review of historic medical records, Dr. Lowengart was in no different position than any other non-treating physician. See Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir.1989) (noting that a treating physician offering a retrospective opinion, with no personal knowledge of the claimant’s historical condition, was little different from any non-treating physician with regard to that time period and was not entitled to enhanced deference merely because of his status as a treating physician). Therefore, the ALJ did not err in rejecting Dr. Lowengart’s opinion because it was contradicted by the opinions of two other physicians who had also reviewed the medical records.
3.DeBerry’s Testimony
The ALJ did not err in his treatment of DeBerry’s testimony because he gave clear and convincing reasons for disbelieving DeBerry’s testimony about the severity of her symptoms. First, the ALJ stated that DeBerry’s allegations of disability were disproportionate to the objective findings in the medical record, noting, among other things, that the medical records showed acute periods of illness of only short duration. Second, the ALJ noted that DeBerry’s reported activities, despite her impairments, were inconsistent with her claimed limitations. Third, the ALJ noted inconsistencies in DeBerry’s statements in the record, such as her contentions that she had difficulty standing and walking and had “markedly reduced” stamina which were contradicted by her report to a nurse practitioner shortly thereafter that she walked one to three miles a day.
4. Testimony of DeBerry’s Husband
The ALJ also did not err in his treatment of the lay testimony of DeBerry’s husband. Contrary to DeBerry’s argument, the ALJ accepted Mr. DeBerry’s testimony to the extent that it described Mr. DeBerry’s perceptions. The ALJ, however, found that his testimony did not provide a sufficient basis to alter the residual functional capacity assessment. Fairly considered, the testimony constitutes evidence that DeBerry’s symptoms were sufficiently severe so as to have “negatively impacted” Mr. and Mrs. DeBerry’s lives prior to her date last insured, but nothing within the testimony contradicts the residual functional capacity determination made by the ALJ.
5. Hypothetical Question Posed to Vocational Expert
The ALJ did not err in his posing of a hypothetical question to the vocational expert. The hypothetical contained a description of DeBerry’s age, education, and past relevant work experience, together with all of the residual functional capacity limitations found by the ALJ to be present. The question would have been improper only if the ALJ’s residual functional capacity assessment was erroneous, but it was not.
AFFIRMED.
xhis disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Victor Ruiz-Lopez appeals the 70-month sentence imposed by the district court following his open guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
The government was not bound by, and therefore did not breach, the fast-track plea agreement because the district court did not accept the plea agreement, Ruiz-Lopez did not plead guilty pursuant to the plea agreement, and Ruiz-Lopez did not detrimentally rely on any representation made by the government in the plea agreement when he pleaded guilty. See United States v. Kuchinski, 469 F.3d 853, 858 (9th Cir.2006). The district court properly disregarded the fast-track plea agreement because Ruiz-Lopez did not plead guilty pursuant to that agreement, and the district court never accepted it. See Fed.R.Crim.P. 11(c)(3)(A).
Ruiz-Lopez’s guilty plea was knowing and voluntary because the record demonstrates that he was aware of and understood the consequences of pleading guilty, including the fact that he was not pleading guilty pursuant to any plea agreement, and his guilty plea was not the result of any promises, threats, mistreatment, or misunderstanding. See Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir.1995).
Ruiz-Lopez’s sentence was procedurally reasonable because the district court followed proper sentencing procedure and adequately explained the sentence selected. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc). Moreover, the district court appropriately considered as a factor that Ruiz-Lopez did not plead guilty pursuant to any plea agreement. See United States v. Reina-Rodriguez, 468 F.3d 1147, 1158-59 (9th Cir.2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844, 851 n. 5 (9th Cir.2007).
Finally, Ruiz-Lopez’s sentence was substantively reasonable because the district court applied the facts of his case to each 18 U.S.C. § 3553(a) factor and came to a reasoned decision in imposing a 70-month sentence. See Carty, 520 F.3d at 991. The district court did not abuse its discretion in finding that a 70-month sen*180tence was sufficient, but not greater than necessary. See id. at 991, 993.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Sofia Maciel Pascacio (“Pascacio”) appeals her conviction for various cocaine-related drug offenses surrounding the use of her residence to receive drugs and transfer money for the purchase of the drugs on behalf of her daughter. She argues that the district court erred by denying her mistrial motion, and giving the jury a deliberate ignorance instruction unsupported by the evidence. We affirm.
A. Mistrial
Pascacio moved for a mistrial after a detective testified that guns and drugs were found at Pascacio’s residence when her son was arrested in an earlier unrelated incident.
A motion for mistrial is reviewed for abuse of discretion. United States v. Hagege, 437 F.3d 943, 959-60 (9th Cir.2006); see also United States v. Allen, 341 F.3d 870, 891 (9th Cir.2003); United States v. Frederick, 78 F.3d 1370, 1375 (9th Cir.1996). “[Cjourts have the power to declare a mistrial whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” United States v. Escalante, 637 F.2d 1197, 1202 (9th Cir.1980) (internal quotations omitted).
The district court did not abuse its discretion in denying the motion for a mistrial. Pascacio challenges the testimony of Detective Rivera insofar as Rivera discussed Pascacio’s son, who was at the time incarcerated in a county jail due to a separate drug conviction. Because the detective mentioned Pascacio’s son only briefly in his testimony, and his testimony was not referenced in closing arguments, any error denying a mistrial was harmless. See United States v. Jimenez-Dominguez, 296 F.3d 863, 867 (9th Cir.2002).
B. Deliberate Ignorance
Also known as a “Jeivell instruction,” a deliberate ignorance or willful blindness instruction is an alternate definition of acting “knowingly” under a given criminal statute. United States v. Jewell, 532 F.2d 697, 700 (9th Cir.1976). To act knowingly “is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question.” Id. A court’s decision to give a deliberate ignorance instruction is reviewed for abuse of discretion. United States v. Heredia, 483 F.3d 913, 922 (9th Cir.2007) (en banc).
In deciding whether to give a deliberate ignorance instruction, a court must first “determine whether the evidence of defendant’s mental state, if viewed in the light most favorable to the government, will support a finding of actual knowledge.” Heredia, 483 F.3d at 922. If the evidence supports this finding, “the court must instruct the jury on this theory.” Id. at 922. Second, if the court determines that “the jury could rationally find willful blindness even though it has rejected the government's evidence of actual knowledge,” it may give a Jewell instruction in addition to the actual knowledge instruction. Id.
*182The district court did not abuse its discretion by giving the jury a deliberate ignorance instruction, especially given the nature of Pascacio’s defense — that she had no direct involvement in the drug trafficking going on in her home. A rational juror could have found that, even if Pascacio did not have actual knowledge of the drug transactions going on in her home, she had suspicions that Maravilla and Barriente were engaging in drug transactions, and avoided the truth while providing assistance.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Greta Anderson (“Anderson”) sued American Airlines, Inc. (“American”) for *183employment discrimination under the California Fair Employment and Housing Act. The jury found that Anderson’s perceived mental disability was a motivating reason for her termination by American, awarding her $1 million in emotional distress damages and $238,333 in economic damages. The district court denied American’s motion for judgment as a matter of law and motion for a new trial (or in the alternative, remittur).
We review de novo the district court’s denial of a motion for judgment as a matter of law, but “[a] jury’s verdict must be upheld if it is supported by substantial evidence ... even if it is also possible to draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002). In making this determination, the court “must view all evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in the favor of the non-mover, and disregard all evidence favorable to the moving party that the jury is not required to believe.” Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir.2008) (citation omitted). “The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir.2006). Applying these standards, we conclude that the jury’s verdict was supported by substantial evidence, and thus we affirm the district court’s denial of American’s motion for judgment as a matter of law.
Our standard of review of the district court’s denial of a motion for a new trial is very deferential. “[W]e give great deference to the trial court’s denial of a motion for a new trial, and will reverse for a clear abuse of discretion only where there is an absolute absence of evidence to support the jury’s verdict.” Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir.2007) (internal citations and quotation marks omitted) (emphasis in original). Because there was substantial evidence to sustain the jury’s verdict, the district court did not clearly abuse its discretion in denying American a new trial.
American requested a new trial on the grounds that jury passion and prejudice infused all issues and resulted in excessive damages. However, “[w]e will not disturb an award of damages on appeal unless it is clearly unsupported by the evidence,” and it “must be affirmed unless it is ‘grossly excessive’ or ‘monstrous’ or ‘shocking to the conscience.’ ” Chalmers v. City of Los Angeles, 762 F.2d 753, 760 (9th Cir.1985) (citations omitted). Here, because the damages award was supported by the evidence and was not “grossly excessive” or “monstrous” or “shocking to the conscience,” the district court properly upheld the award.
American also appeals several trial issues. Jury instructions are reviewed for abuse of discretion and “must fairly and adequately cover the issues presented, must correctly state the law, and must not be misleading.” White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir.2002). Taken as a whole, the jury instructions were proper. The district court did not err in refusing American’s proposed jury instructions.
Finally, the evidentiary rulings of a district court are reviewed for abuse of discretion. Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004) (citation omitted). Here, the district court did not abuse its discretion in any of its evidentiary rulings. The decision to admit the disputed evidence fell within the district court’s discretion under Federal Rules of Evidence 402 and 403.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Ronald Dwane Brook appeals pro se a judgment entered after a four-day jury trial in his civil rights action alleging prison officials were deliberately indifferent to his medical needs. We affirm.
DISCUSSION
1. Dismissal of State Law Claim
The district court properly dismissed Brook’s claim that prison officials violated California Civil Code § 52.1. That statute provides for a civil action against any individual who “interferes by threats, intimidation, or coercion” with “rights secured by the Constitution or laws of the United States.” See Nelson v. City of Irvine, 143 F.3d 1196, 1206 (9th Cir.1998) (quoting § 52.1). The acts alleged — that defendants did not respond timely to Brook’s requests, grievances and appeals — are not “threats, intimidation, or coercion” for purposes of § 52.1.
2. Dismissal of the Warden in his Individual Capacity
Brook’s conclusory allegations against the warden are insufficient to state a constitutional claim against him in his individual capacity. There is nothing to indicate the warden was personally involved in processing requests for medical care or responding to inmate grievances or appeals. See Bressi v. Ford, 575 F.3d 891, 899 n. 8 (9th Cir.2009) (noting “state actor must be personally involved to some extent in the deprivation of a federal right”). Moreover, supervisory liability may be imposed in an individual capacity only when the supervisor participated in or directed the violations, or knew of the violations of subordinates and failed to act to prevent them. Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.2009).
3. Discovery Rulings
The district court properly denied Brook’s motion to compel discovery of “[a]ny and all grievances, complaints, *186or other documents received by the defendants ... concerning mistreatment of inmates.” The request was overbroad, immaterial to Brook’s particular circumstances, and overly burdensome to defendants. See Nugget Hydroelectric, L.P. v. Pacific Gas and Elec. Co., 981 F.2d 429, 438-39 (9th Cir.1992) (noting court is not required to compel disclosure that is “unnecessarily burdensome and overly broad” with minimal chance of relevant evidence).
4. Witnesses
The district court did not abuse its discretion by limiting Brook’s right to confer with inmate witnesses, call those witnesses, or solicit testimony regarding their complaints with prison officials. See Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1071 (9th Cir.2005) (holding there was no abuse of discretion in limiting the number of witnesses or the subject-matter of their testimony); see also Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (noting trial judge has discretion to limit cumulative, repetitive, or irrelevant testimony, control the scope of examination of witnesses, and limit rebuttal testimony).
5. Jury Instruction
The district court did not abuse its discretion by refusing to give a “negligence-per-se” jury instruction. See Millenkamp v. Davisco Foods Int'l, Inc., 562 F.3d 971, 981-82 (9th Cir.2009) (noting standard of review). As the district court explained, Brook pleaded a common law negligence theory and “no strict liability claim or cause of action ... was ever introduced in this case.”
6. Ex Parte Communications
Brook claims his due process rights were violated by the court’s ex parte discussions with defense counsel. See Guenther v. Commissioner, 889 F.2d 882, 884 (9th Cir.1989) (noting ex parte contact may violate a litigant’s right to due process if the litigant was thereby denied the “opportunity to participate in determination of the relevant issues” and suffered unfair prejudice). The district court, however, categorically denied any “such substantive ex parte discussion with defense counsel in this case — on or off the record.” The court surmised there may have been “a couple of times during the trial when plaintiff was brought to the courtroom late because of custodial logistics” and there may have been “non-substantive, off-the-record banter with those present in court at that time while awaiting plaintiff.” We agree with the district court that such minor, casual communication does not amount to an impermissible ex parte contact.
7. Perjured Testimony
Brook sought a new trial based on his allegation that one defendant either testified falsely or manufactured falsified evidence regarding a telephone log of inmates’ requests for dental care, the existence of which had been denied during discovery. See Jones v. Aero/Chem Corp., 921 F.2d 875, 878-79 (9th Cir.1990) (noting new trial may be appropriate if the party proves by clear and convincing evidence that the verdict was obtained through discovery misconduct that prevented the party from fully and fairly presenting its case). The trial court, however, examined the records at issue and correctly concluded they were consistent with the testimony and there was no discovery violation.
8. Appointment of Counsel
The district court properly denied Brook’s repeated requests for appointment *187of counsel. There were no “exceptional circumstances” to justify such an appointment. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.2009) (explaining requirement of exceptional circumstances).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Jack Lee Jordan appeals from the district court’s grant of summary judgment in favor of the United States Department of Labor (“DOL”). The DOL had denied Jordan’s administrative claim seeking his share of a $150,000 lump sum payment under the Energy Employees Occupational Illness Compensation Program Act (“EEOICPA”), 42 U.S.C. § 7384-7S85s-15.
The EEOICPA entitles certain Department of Energy (“DOE”) workers to compensation for illnesses suffered due to exposure to radiation and other toxic substances while working at DOE facilities. Ray Willis Jordan (“Ray”) was a covered DOE contractor who died of lung cancer in 2000. The parties do not dispute that he was a covered employee under EEOICPA. Ray was married to Eunice Welker Jordan, (“Eunice”) who predeceased him.
Jordan lived with Eunice, his aunt, and Ray from 1949, when his mother died, until 1960, when he enlisted in the Marines. Although Ray and Eunice essentially had a parent-child relationship with Jordan, they did not adopt him.
In October 2002, Jordan filed a claim for survivor benefits under Part B of the EEOICPA, which provides that covered persons or their eligible survivors may receive compensation in the form of a $150,000 lump sum payment. 42 U.S.C. § 7384s(a)(l). When the covered claimant is deceased and there is no surviving spouse, the payment “shall be made in equal shares to all children of the covered employee who are living at the time of payment.” 42 U.S.C. § 7384s(e)(l)(B). The term “child” is defined as “a recognized natural child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child.” Id. § 7384s(e)(3)(B); accord 20 C.F.R. § 30.500(a)(2). The DOL ultimately denied Jordan’s claim finding that he was not Ray’s natural child, stepchild or adopted child. This decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
To the extent that Jordan did not waive his argument that the definition of child should cover him because he lived in a “regular parent-child relationship” (see Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1023 (9th Cir.2007)), the argument is not persuasive. The DOL considered alternative definitions of the term “child,” but concluded that none supported an award to Jordan.
The DOL did not ignore Washington state law in determining the definition of “child” as suggested. DOL reasonably distinguished In re Parentage of L.B., 155 Wash.2d 679, 122 P.3d 161 (2005), on the grounds that In re Parentage of L.B. concerned a state’s equitable concerns with the best interests of a child, which do not enter into EEOICPA’s definition of child, and addressed who can be considered a de facto parent, not who can be considered a de facto child. The DOL also reasonably rejected Jordan’s argument that he was a “child” under Revised Code of Washington § 51.08.030, which is a workers’ compensation provision, because Jordan was never in Ray’s “legal custody” as required by that provision.
*189Finally, Jordan’s argument that he has a due process right to the status of a child is not persuasive. He offers no authority that supports this assertion, as the cases he cites, such as Moore v. City of E. Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), and In the Matter of the Custody of Shields, Jenny Shields, 157 Wash.2d 126, 136 P.3d 117 (2006), either address the right of families in less-traditional configurations to associate free of intrusion by the state, or involve questions of state statutory law.
The district court’s grant of summary judgment in favor of the DOL is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Defendant-Appellant Mo Thi Pham appeals her conviction in the district court for thirty-five counts of health care fraud in violation of 18 U.S.C. § 1347. On appeal, Pham argues that the evidence the prosecution presented was insufficient as a matter of law. We review de novo the sufficiency of the evidence supporting her conviction. See United States v. Ruiz, 462 F.3d 1082, 1087-88 (9th Cir.2006). “The evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dearing, 504 F.3d 897, 900 (9th Cir.2007) (quotation marks omitted). “The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict.” United States v. Mares, 940 F.2d 455, 458 (9th Cir.1991).
To prove that Pham acted willfully, “the Government must prove that the defendant acted with knowledge that [her] conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (internal quotation marks omitted). “Fraudulent intent may be, and often must be, proven by circumstantial evidence.” United States v. Rasheed, 663 F.2d 843, 848 (9th Cir.1981).
The government presented sufficient evidence of Pham’s knowledge and intent to defraud Medicare. The government presented testimony that Pham played an active role in calculating the amount each recruiter was paid based on the number of people the recruiter brought to the doctors’ offices. Pham withdrew large sums of money every few days to pay the recruiters and paid them personally at her business. In addition, trial testimony indicated that Pham visited and supervised Dr. Khatibloo’s office three to four times a week, instructed employees to keep track of patients and recruiters, and received over $1 million in eight months for her participation in the scheme. A jury could reasonably have inferred intent to defraud Medicare from these practices.
Specifically, Pham argues that the evidence was insufficient to support a finding of her knowledge and fraudulent intent because there was no evidence that she personally performed certain tasks such as hiring doctors, fixing salaries, billing Medicare, or forging documents. The government, however, was not required to prove that Pham was a principal actor in the scheme, only that she had the requisite knowledge and intent to defraud a health benefit program. See United States v. Stapleton, 293 F.3d 1111, 1117-18 (9th Cir.2002).
Lastly, Pham argues that “[t]he government asked the jury to assume [her] culpability ... largely on the basis of name similarity.” This argument is unpersuasive, however, because the government presented several witnesses who identified Pham in the courtroom as “Lisa” and “Hieu” and testified that she was a participant in the scheme. The government also admitted into evidence a copy of Pham’s *191passport, which indicated that her name was Lisa Hughes. This evidence was sufficient for a jury to rationally determine that Pham also went by the names “Lisa” and “Hieu.”
We conclude that the government presented sufficient evidence for the jury to convict Pham of health care fraud under 18 U.S.C. § 1347. The judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8474362/
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MEMORANDUM **
Chul Kyoon Han appeals the thirty-six-month sentence imposed following his guilty plea conviction of three counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court’s imposition of a sentence that was outside the sentencing guidelines range was not unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). The record as a whole demonstrates that the district court listened to Han’s arguments and simply found the circumstances insufficient to warrant a sentence within the guidelines range. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir.2009); United States v. Tankersley, 537 F.3d 1100, 1113-14 (9th Cir.2008). The district court explained in detail its reasons for imposing an upward variance and these reasons are legitimate and support the variance from the guidelines. See Carty, 520 F.3d at 992. Finally, the district court’s comment that a variance was needed to avoid an unwarranted sentencing disparity simply referred to the fact that the guidelines did not take into account some of the factors present in Han’s case. No further explanation was required. See id. at 992-93.
*192Assuming the government’s statements during the sentencing hearing breached the plea agreement, our independent review of the record convinces us that the breach did not affect Han’s substantial rights because the district court exercised independent judgment in imposing the sentence. Therefore, there is no plain error requiring reversal. See United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir.2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Chul Kyoon Han appeals the thirty-six-month sentence imposed following his guilty plea conviction of three counts of mail fraud, in violation of 18 U.S.C. § 1341, and one count of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court’s imposition of a sentence that was outside the sentencing guidelines range was not unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). The record as a whole demonstrates that the district court listened to Han’s arguments and simply found the circumstances insufficient to warrant a sentence within the guidelines range. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir.2009); United States v. Tankersley, 537 F.3d 1100, 1113-14 (9th Cir.2008). The district court explained in detail its reasons for imposing an upward variance and these reasons are legitimate and support the variance from the guidelines. See Carty, 520 F.3d at 992. Finally, the district court’s comment that a variance was needed to avoid an unwarranted sentencing disparity simply referred to the fact that the guidelines did not take into account some of the factors present in Han’s case. No further explanation was required. See id. at 992-93.
*192Assuming the government’s statements during the sentencing hearing breached the plea agreement, our independent review of the record convinces us that the breach did not affect Han’s substantial rights because the district court exercised independent judgment in imposing the sentence. Therefore, there is no plain error requiring reversal. See United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir.2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
John Wayne Ferguson (“Ferguson”) appeals the National Transportation Safety Board’s decision upholding the Federal Aviation Administration’s (“FAA”) suspension of his Airline Transport Pilot (“ATP”) Certificate. We have jurisdiction under 49 U.S.C. §§ 1153, 44709(f) and 46110(a). We vacate and remand to the National Transportation Safety Board.
The FAA ordered a 90-day suspension of Ferguson’s ATP Certificate for alleged violations of Federal Aviation Regulations 14 C.F.R. §§ 135.293(a), 135.293(b), 135.299(b), and 91.13(a). We recite the facts only as needed to explain our decision. Ferguson appealed to an Administrative Law Judge (“ALJ”) who upheld the FAA’s suspension order but reduced it to 85 days.
During the hearing before the ALJ, the FAA called an expert witness, Richard Conte (“Conte”), an FAA Aviation Safety Inspector. When asked for his opinion, Conte testified that the flights Ferguson operated on June 26, 2005, were flights “for compensation or hire” under 14 C.F.R § 135. The ALJ curtailed Ferguson’s cross-examination of Conte regarding the bases for his opinion, barring or limiting Ferguson’s attempts to inquire into Conte’s understanding of “for compensation or hire,” his understanding of flight maintenance logs, and how much weight he placed in forming his opinion on various pieces of evidence.
We review NTSB decisions under the Administrative Procedure Act. Mendenhall v. N.T.S.B., 92 F.3d 871, 874 (9th Cir.1996) (“The Court of Appeals reviews the NTSB order in accordance with the Administrative Procedure Act.”). We uphold agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
The NTSB abused its discretion by affirming the ALJ’s order, and that abuse of discretion was prejudicial to Ferguson. The Rules of Practice in Ah Safety Proceedings provide that each party has the right to “conduct such cross-examination as may be required for a full and trae disclosure of the facts.” 49 C.F.R. § 821.38. Conte was the FAA’s lone witness as to the revenue-generating nature of the disputed flights. It was error for the ALJ to curtail Ferguson’s cross-examination of Conte on so many aspects of his testimony as to this central issue. The ALJ’s reliance on that testimony, particularly as to the contents of the flight logs, makes clear that the error was prejudicial. We vacate and remand to the National Transportation Safety Board.
VACATED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM *
Plaintiff Shannon C. Horita appeals the district court’s decision to grant Defendant Kauai Island Utility Cooperative’s motion for summary judgment in this employment-related diversity case.
We review de novo the district court’s grant of summary judgment. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.2008).
1. The district court properly held that Plaintiff had failed to file a charge of discrimination with the Equal Employment Opportunity Commission within 300 days of any discrete act of discrimination. 42 U.S.C. § 2000e-5(e)(l). The latest date on which Plaintiff learned definitively of her impending termination was October 5, 2005, the date of a second letter Defendant sent to Plaintiff. That letter clearly and unequivocally told Plaintiff that her position would be eliminated and that she could be re-employed by Defendant through a 60-day bidding process. The letter dated October 5, 2005, if not the earlier letter relaying the same message on September 28, 2005, was the adverse employment action that triggered the running of the 300-day statute of limitations. See Del. State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (holding that the date on which the plaintiff learned of the defendant’s denial of tenure, not the date on which the plaintiff became unemployed, was when the statute of limitations began to run). The fact that Plaintiff did not have evidence of a discriminatory motive until later does not change the outcome under a straightforward application of the statute of limitations. See id. (holding that “the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the [adverse employment action] was made and communicated to [the plaintiff]”).
2. We do not reach Plaintiffs claims of equitable tolling or equitable estoppel, which could toll the running of the 300 days until mid-December when Plaintiff claims she first learned of discriminatory intent (and thus of her claim). The facts on which Plaintiff relies to make these arguments on appeal are in the record, but she did not make these claims explicitly to the district court. Had she done so, Defendant might have introduced evidence to dispute the equitable claims. Because Plaintiff failed to raise these claims below, we do not reach them now. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).
3. Plaintiffs argument that her claims for intentional or negligent infliction of emotional distress are subject to a two-year statute of limitations also fails. To the extent that Plaintiff is seeking to raise claims for intentional or negligent infliction of emotion distress for the first time on appeal, her claims are waived. Id.; see also Hac v. Univ. of Haw., 102 Hawai’i 92, *19673 P.3d 46, 58-59 (2008) (holding that a tort claim for intentional infliction of emotional distress is distinct from a claim for emotional distress damages under the employment discrimination statute). To the extent that Plaintiff is arguing that the 180-day administrative filing period applicable to claims under Hawaii Revised Statutes section 378-2 does not apply when the plaintiff seeks emotional distress damages as a remedy for a violation of section 378-2, her argument fails. Notwithstanding the remedies sought, claims under section 378-2 are governed by a 180-day administrative filing requirement. Haw.Rev.Stat. § 368-ll(c)(1); Furukawa v. Honolulu Zoological Soc’y, 85 Hawai'i 7, 936 P.2d 643, 654 (1997).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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FISHER, Circuit Judge,
dissenting in part:
I respectfully dissent from part 2 of the court’s decision. I would vacate summary judgment on Horita’s Title VII claim because she has demonstrated a triable issue of equitable tolling or equitable estoppel that would make her Equal Employment Opportunity Commission (EEOC) charge timely. See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985) (holding we may consider an issue raised for the first time on appeal “when the issue presented is purely one of law and ... depend[s] on the factual record developed below”). Assuming the employer’s decision to terminate Horita became actionable no later than October 5, 2005, the employer’s assurance that she would be reinstated if the human resources department remained in house tolled the filing period until she learned otherwise. See Aronsen v. Crown Zellerbach, 662 F.2d 584, 595 & n. 22 (9th Cir.1981) (explaining that tolling or estoppel may apply where “the employer’s conduct was found to hold out the possibility of reinstatement or otherwise to ‘lull’ the employee into foregoing a timely filing”).
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ORDER
We grant Praise Christian Center’s and Pastor Derek Annunciation’s petition for panel rehearing and deny the petition for rehearing en banc as moot. We hereby withdraw the order filed on May 11, 2009. *198A disposition shall be filed concurrently with this order.
MEMORANDUM **, ***
Praise Christian Center and Pastor Derek Annunciation (collectively “Praise Christian”) filed a complaint in district court alleging that the City of Huntington Beach violated the “Equal Terms” provision of the Religious Land Use and Institutionalized Persons Act by requiring Praise Christian to install a sprinkler system throughout the warehouse at 18851 Goldenwest Boulevard if it wished to continue holding religious services there. The district court granted the City of Huntington Beach’s summary judgment motion as to plaintiffs’ Equal Terms claim. Praise Christian timely appealed.
Before we decided Praise Christian’s appeal, it moved out of the warehouse. In its complaint, Praise Christian requested nominal and compensatory damages with respect to its Equal Terms claim. But Praise Christian did not reiterate this request in its appeal before us. Because Praise Christian no longer uses the warehouse, and did not raise damages on appeal, we dismissed the appeal as moot.
In considering Praise Christian’s petition for panel rehearing, we were persuaded that we erred in dismissing the appeal as moot. A claim for nominal damages creates the requisite personal interest necessary to maintain a claim’s justiciability. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir.2002) (“A live claim for nominal damages will prevent dismissal for mootness.”). If damages were sought in the complaint, there is a live claim for damages, even if the claim is seemingly implausible. Id. Praise Christian sought nominal and compensatory damages in its complaint with respect to its Equal Terms claim. Consequently, Praise Christian’s Equal Terms claim was not rendered moot when Praise Christian stopped using the warehouse.
Because we conclude that the appeal was not mooted, we review the merits of Praise Christian’s arguments with respect to its Equal Terms claim. We have jurisdiction under 28 U.S.C. § 1292. We affirm for the reasons stated by the district court: Praise Christian has not shown disparate treatment.
AFFIRMED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This appeal was originally the subject of a dispositive order filed May 11, 2009. On June 1, 2009, Appellants petitioned for panel rehearing and rehearing en banc. In an order filed contemporaneously with this opinion, we grant the petition for panel rehearing; *199withdraw the May 11, 2009 order; and deny the petition for rehearing en banc as moot.
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ORDER
The petitioner having failed to file an appendix required by Federal Circuit Rule 30(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM *
Plaintiff Shannon C. Horita appeals the district court’s decision to grant Defendant Kauai Island Utility Cooperative’s motion for summary judgment in this employment-related diversity case.
We review de novo the district court’s grant of summary judgment. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.2008).
1. The district court properly held that Plaintiff had failed to file a charge of discrimination with the Equal Employment Opportunity Commission within 300 days of any discrete act of discrimination. 42 U.S.C. § 2000e-5(e)(l). The latest date on which Plaintiff learned definitively of her impending termination was October 5, 2005, the date of a second letter Defendant sent to Plaintiff. That letter clearly and unequivocally told Plaintiff that her position would be eliminated and that she could be re-employed by Defendant through a 60-day bidding process. The letter dated October 5, 2005, if not the earlier letter relaying the same message on September 28, 2005, was the adverse employment action that triggered the running of the 300-day statute of limitations. See Del. State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (holding that the date on which the plaintiff learned of the defendant’s denial of tenure, not the date on which the plaintiff became unemployed, was when the statute of limitations began to run). The fact that Plaintiff did not have evidence of a discriminatory motive until later does not change the outcome under a straightforward application of the statute of limitations. See id. (holding that “the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the [adverse employment action] was made and communicated to [the plaintiff]”).
2. We do not reach Plaintiffs claims of equitable tolling or equitable estoppel, which could toll the running of the 300 days until mid-December when Plaintiff claims she first learned of discriminatory intent (and thus of her claim). The facts on which Plaintiff relies to make these arguments on appeal are in the record, but she did not make these claims explicitly to the district court. Had she done so, Defendant might have introduced evidence to dispute the equitable claims. Because Plaintiff failed to raise these claims below, we do not reach them now. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).
3. Plaintiffs argument that her claims for intentional or negligent infliction of emotional distress are subject to a two-year statute of limitations also fails. To the extent that Plaintiff is seeking to raise claims for intentional or negligent infliction of emotion distress for the first time on appeal, her claims are waived. Id.; see also Hac v. Univ. of Haw., 102 Hawai’i 92, *19673 P.3d 46, 58-59 (2008) (holding that a tort claim for intentional infliction of emotional distress is distinct from a claim for emotional distress damages under the employment discrimination statute). To the extent that Plaintiff is arguing that the 180-day administrative filing period applicable to claims under Hawaii Revised Statutes section 378-2 does not apply when the plaintiff seeks emotional distress damages as a remedy for a violation of section 378-2, her argument fails. Notwithstanding the remedies sought, claims under section 378-2 are governed by a 180-day administrative filing requirement. Haw.Rev.Stat. § 368-ll(c)(1); Furukawa v. Honolulu Zoological Soc’y, 85 Hawai'i 7, 936 P.2d 643, 654 (1997).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8474367/
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FISHER, Circuit Judge,
dissenting in part:
I respectfully dissent from part 2 of the court’s decision. I would vacate summary judgment on Horita’s Title VII claim because she has demonstrated a triable issue of equitable tolling or equitable estoppel that would make her Equal Employment Opportunity Commission (EEOC) charge timely. See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985) (holding we may consider an issue raised for the first time on appeal “when the issue presented is purely one of law and ... depend[s] on the factual record developed below”). Assuming the employer’s decision to terminate Horita became actionable no later than October 5, 2005, the employer’s assurance that she would be reinstated if the human resources department remained in house tolled the filing period until she learned otherwise. See Aronsen v. Crown Zellerbach, 662 F.2d 584, 595 & n. 22 (9th Cir.1981) (explaining that tolling or estoppel may apply where “the employer’s conduct was found to hold out the possibility of reinstatement or otherwise to ‘lull’ the employee into foregoing a timely filing”).
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https://www.courtlistener.com/api/rest/v3/opinions/8474370/
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ORDER
We grant Praise Christian Center’s and Pastor Derek Annunciation’s petition for panel rehearing and deny the petition for rehearing en banc as moot. We hereby withdraw the order filed on May 11, 2009. *198A disposition shall be filed concurrently with this order.
MEMORANDUM **, ***
Praise Christian Center and Pastor Derek Annunciation (collectively “Praise Christian”) filed a complaint in district court alleging that the City of Huntington Beach violated the “Equal Terms” provision of the Religious Land Use and Institutionalized Persons Act by requiring Praise Christian to install a sprinkler system throughout the warehouse at 18851 Goldenwest Boulevard if it wished to continue holding religious services there. The district court granted the City of Huntington Beach’s summary judgment motion as to plaintiffs’ Equal Terms claim. Praise Christian timely appealed.
Before we decided Praise Christian’s appeal, it moved out of the warehouse. In its complaint, Praise Christian requested nominal and compensatory damages with respect to its Equal Terms claim. But Praise Christian did not reiterate this request in its appeal before us. Because Praise Christian no longer uses the warehouse, and did not raise damages on appeal, we dismissed the appeal as moot.
In considering Praise Christian’s petition for panel rehearing, we were persuaded that we erred in dismissing the appeal as moot. A claim for nominal damages creates the requisite personal interest necessary to maintain a claim’s justiciability. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir.2002) (“A live claim for nominal damages will prevent dismissal for mootness.”). If damages were sought in the complaint, there is a live claim for damages, even if the claim is seemingly implausible. Id. Praise Christian sought nominal and compensatory damages in its complaint with respect to its Equal Terms claim. Consequently, Praise Christian’s Equal Terms claim was not rendered moot when Praise Christian stopped using the warehouse.
Because we conclude that the appeal was not mooted, we review the merits of Praise Christian’s arguments with respect to its Equal Terms claim. We have jurisdiction under 28 U.S.C. § 1292. We affirm for the reasons stated by the district court: Praise Christian has not shown disparate treatment.
AFFIRMED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This appeal was originally the subject of a dispositive order filed May 11, 2009. On June 1, 2009, Appellants petitioned for panel rehearing and rehearing en banc. In an order filed contemporaneously with this opinion, we grant the petition for panel rehearing; *199withdraw the May 11, 2009 order; and deny the petition for rehearing en banc as moot.
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MEMORANDUM **
Ranjit Singh Dhillon, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen proceedings due to ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo ineffective assistance of counsel claims. See Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Dhillon’s motion to reopen. The motion was filed out of time, and the BIA determined that even if the deadline were tolled, the motion should be denied because Dhillon was not prejudiced by his former counsel’s failure to present corroborating medical evidence. See Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that counsel’s performance was so inadequate that it may have affected the proceeding’s outcome). In certain circumstances an immigration judge’s (IJ) credibility determination could be impacted by the addition of corroborating evidence. Here, however, the IJ denied Dhillon’s application largely because he did not find Dhillon’s testimony that he was a member of a persecuted political group, or *200that he was targeted by the police based on his association with that group, credible. We affirmed the IJ’s decision on this basis. Dhillon v. Ashcroft, 121 Fed.Appx. 255, 256 (9th Cir.2005). The proffered medical evidence might corroborate torture, but does not enhance Dhillon’s credibility on the issue of whether he was persecuted on account of his political opinion.
Dhillon fails to show a due process violation based on ineffective assistance of counsel because he has failed to demonstrate prejudice. Therefore, the BIA did not abuse its discretion in denying Dhillon’s petition to reopen.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Amritpal Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order of removal, which affirms the Immigration Judge’s (“IJ”) denial of Singh’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We deny the petition for review.
I
The government argues that we lack jurisdiction to consider Singh’s asylum application under 8 U.S.C. § 1158(a)(3) because the IJ found the petition untimely. However, our decision in Hakopian v. Mukasey, 551 F.3d 843 (9th Cir.2008), compels a different result. In Hakopian, the government filed a Notice to Appear alleging *204an entry date that established the timeliness of an applicant’s petition; the applicant admitted the entry date; and the government failed to amend the Notice to Appear or otherwise contest the entry date before the IJ. Id. at 845-46. We held that, under those circumstances, the entry date constitutes an undisputed fact and the court of appeals has jurisdiction to review the denial of asylum on timeliness grounds. Id. at 847. This case presents identical facts. Thus, we have jurisdiction to review Singh’s asylum claim under Halcopian, which also compels the conclusion that we must consider the application timely filed.
II
Substantial evidence supports the agency’s adverse credibility determination. Although many of the grounds identified by the IJ lack merit, even one significant discrepancy going to the heart of Singh’s claim suffices to support an adverse credibility finding. Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001).
Here, the IJ reasonably questioned the authenticity of the two documents Singh submitted to establish his identity: a driver’s license and a school matriculation document. The IJ highlighted a series of discrepancies in the driver’s license, including a failure to comply with its own anti-forgery protections. See Lin v. Gonzales, 434 F.3d 1158, 1163 (9th Cir.2006) (a finding of fraudulent documentation may rest on judicial expertise, so long as “such expertise ... [is] articulated on the record so that the reviewing court can be confident that the IJ’s determinations are based on objective criteria particularized to the document”). Moreover, Singh’s testimony about his education conflicted sharply with the details listed on his school matriculation document.
Proof of identity constitutes a central element of Singh’s claims for relief. See Kalouma v. Gonzales, 512 F.3d 1073, 1079 (9th Cir.2008) (“Part of [the applicant’s] case ... must be satisfactory proof of his refugee status in which identity operates as an element.”); Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (characterizing identity as a key element of an asylum claim). Accordingly, the discrepancies in Singh’s driver’s license and testimony about his school matriculation document support the IJ’s adverse credibility finding.
Moreover, Singh testified inconsistently on whether he had been baptized. Although Singh first testified that he had not been baptized, he reversed his testimony when confronted with notes from his asylum interview and stated that he could remember the date of his baptism, but not the year. The IJ reasonably relied on this inconsistency in finding that Singh lacked credibility.
Taken together, we conclude that these inconsistencies provide specific, cogent reasons for the adverse credibility finding. Because substantial evidence in the record supports the adverse credibility finding, we must deny the petition for review as to the application for asylum, withholding of removal, and relief under the CAT. Farah, 348 F.3d at 1156-57.
PETITION DENIED.
■pjjjg disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Edward Karanja, a national and citizen of Kenya, and his wife, Winnie Hiuhu, petition for review of a final order of the Board of Immigration Appeals (BIA) adopting the immigration judge’s (IJ) decision denying their application for asylum and withholding of removal under both the Immigration and Nationality Act (INA) and the United Nations Convention *209Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and deny the petition for review.
I
The IJ’s adverse credibility determination is supported by specific, cogent reasons, see Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and substantial evidence. Naranja testified that the editor of the magazine for which he worked, and with whom he was ai*rested, was convicted of treason and served three years; however, this was contradicted by other evidence that the editor was jailed for failing to file financial reports and, more importantly, was sentenced to nine months but served less than a month. Further, Naranja testified that his fingernails were plucked out, whereas his declaration said toenails. Finally, Naranja admitted to submitting a manufactured and fraudulent Democratic Party membership card. He was given an opportunity to explain each inconsistency, but the IJ found he did not do so plausibly. We cannot say the IJ was compelled to find otherwise. Naranja unambiguously referred to the editor’s sentence alone— not, as he tried to explain, to a range of sentences that the editor and others received. Regardless of the implement used, and the IJ’s interjecting for the record “[sjhowing the fingernails,” Naranja conceded there was a discrepancy, reiterated that the harm was to his fingernails, and offered only a vague explanation for testifying contrary to his declaration. And there is no question he offered a fraudulent document in support of his claim of political persecution. To his credit, Naranja acknowledged this was a mistake, but that does not undermine the IJ’s finding. As these unexplained inconsistencies go to the heart of Naranja’s claim, the IJ could determine that his testimony was not credible and thus, he is not eligible for asylum. See de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997);1 Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990).
Given this determination, Naranja is not entitled to a presumption of future persecution. The record does not compel a finding of well-founded fear of future persecution, or torture for purposes of CAT relief, as both are based on the same testimony found incredible. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.2003). In addition, the IJ found that country conditions have changed, a finding to which no objection is preserved.
II
The IJ’s treatment of a letter and “reissued” membership card purportedly sent by the Democratic Party of Nenya did not deny Naranja due process or a fair hearing. The IJ gave specific, cogent reasons for evaluating the credibility of these documents. Naranja points to no authority requiring the IJ to subject the “reissued” card to the same forensic examination as his original, fraudulently-manufactured submission.
III
We lack jurisdiction to consider whether the IJ erred by taking administrative notice of Nenya’s regime change because Naranja failed to raise it before the BIA. Ramos v. INS, 246 F.3d 1264, 1267 (9th Cir.2001).
PETITION DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Because Karanja's asylum application was filed prior to May 11, 2005, the REAL ID Act, whicli did away with this circuit's “heart of the claim” rule, see 8 U.S.C. § 1158(b)(l)(B)(iii), does not apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005).
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*211MEMORANDUM **
Universal Trading & Investment Co. (“UTI”) appeals the district court’s grant of summary judgment in favor of Pavel Lazarenko and Dugsberry, Inc. (“Dugsberry”). UTI also appeals the district court’s entry of final judgment and denial of a request to entertain a Fed.R.Civ.P. 60(b) motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the grant of summary judgment and determination that UTI’s claim was time-barred. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir.2003). UTI’s challenge to the entry of final judgment is reviewed for abuse of discretion. Owens Corning v. Nat’l Union Fire Ins. Co., 257 F.3d 484, 491 (6th Cir.2001). The district court’s order declining to entertain a Rule 60(b) motion is not a final determination on the merits, and is not subject to appellate review. Defenders of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir.2000).
After obtaining a default judgment against a third party, UTI sought to enforce the judgment against California real property owned by Lazarenko and Dugsberry on the theory they acquired the property with funds fraudulently transferred by the judgment debt- or. The district court determined that UTI’s application to levy execution on the property under the California Uniform Fraudulent Transfer Act was time-barred. We agree. Section 3439.09(c) of the California Civil Code provides:
Notwithstanding any other provision of law, a cause of action with respect to a fraudulent transfer or obligation is extinguished if no action is brought or levy made ... within seven years after the transfer was made or the obligation was incurred.
By enacting § 3439.09(c), the California legislature “clearly meant to provide an overarching, all-embracing maximum time period to attack a fraudulent transfer, no matter whether brought under the [Uniform Fraudulent Transfer Act] or otherwise.” Macedo v. Bosio, 86 Cal.App.4th 1044, 1050 n. 4, 104 Cal.Rptr.2d 1 (2001). The fraudulent transfers relating to the California property allegedly occurred in 1996 and 1997, more than seven years before UTI filed its application to levy judgment on July 31, 2006. UTI’s claim is therefore time-barred under § 3439.09(c).
Because the summary judgment order resolved the only pending claim, the district court did not abuse its discretion in entering final judgment. UTI contends the district court should have first addressed additional claims raised in a verified complaint and amended application. But these new claims were filed after summary judgment was granted and without the district court’s permission. Although the district court implicitly denied UTI leave to file these new claims by entering final judgment, the court advised UTI in a post-judgment order that it could proceed by filing its complaint in a new case. UTI has done just that, filing a materially identical complaint in an ongoing case in the Northern District of California, Universal Trading & Investment Co. v. Dugsberry, Inc., et al., D.C. No. 3:08-cv-03632-CRB. Any issue regarding the implicit rejection of UTI’s post-judgment filings is moot.
We note UTI’s briefs are in violation of Fed. R.App. 28 and the appeal is subject to dismissal for that reason alone. In re O’Brien, 312 F.3d 1135, 1136 (9th *212Cir.2002). The statement of facts is almost entirely argument and references to the record are few and far between. The briefs present numerous issues that are unsupported by argument, and therefore are waived. Mantinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996). UTI distorts the summary judgment record as well as cited legal authority, and engages in baseless attacks on the district court’s fairness.
More seriously, it appears to this court from official district court records that UTI’s attorneys have repeatedly attempted to conceal and misrepresent the disposition of UTI’s application to levy execution on bank accounts during the course of this appeal. In UTI’s initial brief, authored by attorneys George Lambert and John H. Aspelin, UTI argued the district court ignored the application to levy on bank accounts and never addressed the subject in any court order. See Blue Brief at 7. When questioned at oral argument, UTI’s attorney (and Aspelin’s partner), James C. Bridgman, repeatedly insisted the bank account application was overlooked by the district court and that nothing in the record indicated otherwise. The obvious purpose of UTI’s baseless argument was to cast doubt on whether summary judgment resolved all UTI’s claims. But it appears that UTI’s counsel must have known from their own direct involvement in the district court proceedings in this and in related cases, and by a review of the district court docket, that their representations regarding the status of the bank account application were patently false.
Aspelin represented UTI in the district court. On June 6, 2006, Judge Charles R. Breyer referred the bank account levy application to Judge Martin J. Jenkins, to consider whether the application was related to a pending criminal case on Judge Jenkins’ docket, United States v. Lazarenko, D.C. No. CR 00-0284. See Universal Trading & Investment Co. v. Lazarenko, et al., D.C. No. 3:06-MC80086, Docket No. 5. On August 29, 2006, Judge Jenkins found UTI’s bank account levy application related to Lazarenko’s criminal case and accepted reassignment of the bank account issue. See id., Docket No. 10. Aspelin appeared on UTI’s behalf in Lazarenko’s criminal case and filed petitions claiming an interest in bank accounts that were subject to criminal forfeiture. See United States v. Lazarenko, D.C. No. CR 00-0284, Docket Nos. 958-969. After Judge Jenkins dismissed UTI’s claim as an intervening party and denied UTI’s Rule 59(e) motion to alter judgment (also submitted by Aspelin), Aspelin filed UTI’s notice of appeal in Lazarenko’s criminal case on June 15, 2009. Dismissal of the bank account claims is now the subject of a separate appeal, United States v. Universal Trading & Investment Co., 9th Cir. Docket No. 09-10255. Both Aspelin and Lambert filed appearances as UTI’s attorneys in the appeal of the dismissal of UTI’s bank account application in the Lazarenko criminal case. At no time — either before or after oral argument — have Aspelin, Lambert, or Bridgman taken any corrective steps to apprise this court of the true disposition of UTI’s application to levy on the bank accounts or to withdraw their misleading representations.
Separate Orders to Show Cause filed concurrently with this disposition require UTI’s attorneys, George Lambert, John H. Aspelin, and James C. Bridgman, to show cause why they should not be disciplined pursuant to Fed. R.App. P. 46(b) and (c) for making material misrepresentations to this court.
AFFIRMED; ORDERS TO SHOW CAUSE ISSUED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The petitioner having failed to file an appendix required by Federal Circuit Rule 30(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM **
Ranjit Singh Dhillon, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen proceedings due to ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo ineffective assistance of counsel claims. See Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Dhillon’s motion to reopen. The motion was filed out of time, and the BIA determined that even if the deadline were tolled, the motion should be denied because Dhillon was not prejudiced by his former counsel’s failure to present corroborating medical evidence. See Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that counsel’s performance was so inadequate that it may have affected the proceeding’s outcome). In certain circumstances an immigration judge’s (IJ) credibility determination could be impacted by the addition of corroborating evidence. Here, however, the IJ denied Dhillon’s application largely because he did not find Dhillon’s testimony that he was a member of a persecuted political group, or *200that he was targeted by the police based on his association with that group, credible. We affirmed the IJ’s decision on this basis. Dhillon v. Ashcroft, 121 Fed.Appx. 255, 256 (9th Cir.2005). The proffered medical evidence might corroborate torture, but does not enhance Dhillon’s credibility on the issue of whether he was persecuted on account of his political opinion.
Dhillon fails to show a due process violation based on ineffective assistance of counsel because he has failed to demonstrate prejudice. Therefore, the BIA did not abuse its discretion in denying Dhillon’s petition to reopen.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Maria Dolores Lopez de Garcia petitions for review of the Board of Immigration Appeals’s (“BIA”) order dismissing her appeal and affirming the Immigration Judge’s (“U”) denial of her request for cancellation of removal because she has an aggravated felony conviction.
Petitioner was charged with being removable under INA § 237(a)(l)(E)(i) (codified at 8 U.S.C. § 1227(a)(l)(E)(i)) for her 1998 conduct in smuggling aliens, and under INA § 237(a)(2)(A)(iii) (codified at 8 U.S.C. § 1227(a)(2)(A)(iii)) for her 1993 conviction for aiding and abetting in the transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(l)(A)(iii).
Petitioner raises issues of law, over which we have jurisdiction under the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D). See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005), as adopted by, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir.2006) (en banc). Petitioner contends she should have been allowed to file an application for a waiver under three provisions: (1) former INA § 212(c), codified at 8 U.S.C. § 1182(c); (2) INA § 212A(a), codified at 8 U.S.C. § 1229b(a); and (3) INA § 212(h), codified at 8 U.S.C. § 1182(h).
Both the BIA and the IJ assumed that petitioner was eligible for a waiver under INA 212(c), but nevertheless held that petitioner would still be removable as charged. We review the BIA’s legal holdings de novo, Abebe v. Mukasey, 554 F.3d 1203, 1205 (9th Cir.2009) (en banc), and we deny the petition.
Petitioner was in removal proceedings, not exclusion proceedings. Therefore, she was not eligible to apply for INA § 212(c) relief (codified at 8 U.S.C. § 1182(c)). See Abebe, 554 F.3d at 1205. Further, aliens in removal proceedings are not denied equal protection of the law because Congress chose to make certain avenues of relief available to aliens in exclusion proceedings that it did not make available to aliens in removal proceedings. Id. at 1206-08.
Even assuming petitioner were eligible for INA § 212(c) relief for her 1993 conviction, she was still removable as *202charged for her 1998 conduct under 8 U.S.C. § 1227(a)(1)(E)®, and she still remained ineligible to apply for cancellation of removal. As the BIA has explained:
[SJince a grant of section 212(c) relief “waives” the finding of excludability or deportability rather than the basis of the excludability itself, the crimes alleged to be grounds for excludability or deportability do not disappear from the alien’s record for immigration purposes.
Matter of Balderas, 20 I. & N. Dec. 389, 391 (BIA 1991). Thus, even if the charge of removability based on petitioner’s 1993 conviction were eliminated under 212(c), petitioner would still face the separate charge of removability for her 1998 conduct, and her 1993 conviction would still bar her from seeking cancellation of removal on that charge.
Further, 8 U.S.C. § 1229b(c)(6) specifically prohibits a waiver of an aggravated felony charge in connection with an INA § 212(c) waiver, and 8 U.S.C. § 1229b(a)(3) specifically limits cancellation of removal to aliens who have not been convicted of an aggravated felony. Petitioner argues a § 212(c) waiver should erase her conviction for all immigration purposes, but it does not. We have already rejected this argument in Garcia-Jimenez v. Gonzales, 488 F.3d 1082 (9th Cir.2007).
Petitioner next argues she should have been allowed to apply for a waiver under INA § 212(h), codified at 8 U.S.C. § 1182(h), which sets forth several classes of aliens who are not eligible for visas or admission to the United States. As with § 212(c) relief, the statutory language makes clear § 212(h) does not apply to aliens in removal proceedings. Further, § 212(h) does not apply to petitioner because she is a previously admitted legal permanent resident who was subsequently convicted of an aggravated felony. Taniguchi v. Schultz, 303 F.3d 950, 957-58 (9th Cir.2002).
All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) and the tolling of the voluntary departure period shall continue in effect until issuance of the mandate. Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir.2004) (order); Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004).
DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM ***
Dhruba Pradhan, a native and citizen of Nepal, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We hold that the BIA’s decision is supported by substantial evidence and deny the petition for review.
We review for substantial evidence the decision determining whether an alien has established eligibility for asylum or withholding of removal. Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir.2009). We have jurisdiction to review the BIA’s denial of withholding of removal under 8 U.S.C. § 1252(a)(1).
We reject the government’s contention that we lack jurisdiction to review the BIA’s denial of Pradhan’s asylum request under 8 U.S.C. § 1158(a)(3). Under 8 U.S.C. § 1158(a)(2)(B), an alien seeking asylum must file an application within one year of arrival in the United States, unless one of two statutory exceptions applies. See 8 U.S.C. § 1158(a)(2)(D) (late applications may be considered “if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application”). The alien must also demonstrate that the application for asylum was filed within a reasonable amount of time after the changed or extraordinary circumstances. See 8 C.F.R. §§ 208.4(a)(4)(h), 208.4(a)(5)(iv). Although 8 U.S.C. § 1158(a)(3) bars review of determinations related to the one-year time bar for filing an asylum claim and its exceptions, the REAL ID Act of 2005 “restores our jurisdiction over ‘constitutional claims or questions of law.’ ” Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (quoting Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005)). We held in Ramadan that this jurisdiction extends to mixed questions of law and fact, including the “changed circumstances” question under § 1158(a)(2)(D).
Pradhan entered the United States on a B1 visa in 1999. He changed his status to an FI student visa, but then ceased his studies in December 2001. He was therefore out of status as of the end of December 2001. His asylum application was not filed until December 23, 2002. Pradhan does not dispute that he did not file for asylum within one year of entry, but contends that his untimely asylum application should be excused because of “changed country conditions.” See 8 C.F.R. § 208.4(a)(4).
The IJ denied Pradhan’s asylum application on the ground that Pradhan failed to establish exceptional circumstances for filing his application after one year of entry into the United States. The IJ also found that even if Pradhan had demonstrated changed country conditions, he had not demonstrated that he had applied for asylum within a reasonable period of time after he fell out of status and the changed country conditions were known to him. The BIA adopted and affirmed the IJ’s *207decision. These findings are supported by substantial evidence.
Pradhan claims that it was not until November 2002 that he learned of changed country conditions. The record does not support this contention. Pradhan fell out of status in December 2001. Throughout the following year Pradhan’s family kept him informed about the political climate in Nepal. Yet it was not until November 2002, almost a year later, that he consulted an attorney to pursue his asylum claim. Pradhan testified that his reasons for waiting were that he was “waiting for money to come” and “also thought maybe things will change.” Under these circumstances, the IJ properly concluded that Pradhan had not shown changed or extraordinary circumstances justifying his late application, and that one year between falling out of status and filing his asylum application was not a reasonable period.
To demonstrate eligibility for withholding of removal, Pradhan had to prove it is “more likely than not” that his life or freedom would be threatened in Nepal because of his “race, religion, nationality, membership in a particular social group, or political opinion.” See Al-Harbi v. I.N.S., 242 F.3d 882, 888 (9th Cir.2001); 8 U.S.C. § 1231(b)(3). To receive protection under CAT, Pradhan had to demonstrate that “it is more likely than not that he ... would be tortured if removed to the proposed country of removal.” Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir.2005); 8 C.F.R. § 208.16(c)(2).
The IJ found that Pradhan had been persecuted by Nepalese police and Maoist terrorists in Nepal in the past. However, the IJ determined (1) that changes in his family’s situation in Nepal demonstrated that Pradhan’s life or freedom would no longer be threatened, and (2) that Pradhan could avoid a future threat to his life or freedom by relocating to Kathmandu with the rest of his family. The BIA agreed. Both of these findings are supported by substantial evidence.
First, Pradhan was unable to produce evidence to corroborate his testimony that the Nepalese police have an ongoing interest in him. No member of his family had been arrested or harmed since Pradhan left Nepal. Further, the same government officials that had persecuted Pradhan in the past wrote a letter stating the government was concerned for the safety of Pradhan and his family, and Pradhan obtained a replacement Nepalese passport in 2002 without incident.
Second, the BIA and IJ noted that Pradhan’s family has relocated to Kathmandu and has not had any problems with the Maoists since Pradhan left in 1999. The IJ determined that there was not a “real likelihood or clear probability that the Maoists are interested in the respondent” because they have not had any contact with Pradhan or his family “for a number of years.” Thus, Pradhan could avoid future persecution by joining his family in Kathmandu, where his family is currently living without incident. Under these circumstances, Pradhan did not show that he was likely to face a threat to his life or freedom or would be tortured if removed.
PETITION DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*211MEMORANDUM **
Universal Trading & Investment Co. (“UTI”) appeals the district court’s grant of summary judgment in favor of Pavel Lazarenko and Dugsberry, Inc. (“Dugsberry”). UTI also appeals the district court’s entry of final judgment and denial of a request to entertain a Fed.R.Civ.P. 60(b) motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the grant of summary judgment and determination that UTI’s claim was time-barred. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir.2003). UTI’s challenge to the entry of final judgment is reviewed for abuse of discretion. Owens Corning v. Nat’l Union Fire Ins. Co., 257 F.3d 484, 491 (6th Cir.2001). The district court’s order declining to entertain a Rule 60(b) motion is not a final determination on the merits, and is not subject to appellate review. Defenders of Wildlife v. Bernal, 204 F.3d 920, 930 (9th Cir.2000).
After obtaining a default judgment against a third party, UTI sought to enforce the judgment against California real property owned by Lazarenko and Dugsberry on the theory they acquired the property with funds fraudulently transferred by the judgment debt- or. The district court determined that UTI’s application to levy execution on the property under the California Uniform Fraudulent Transfer Act was time-barred. We agree. Section 3439.09(c) of the California Civil Code provides:
Notwithstanding any other provision of law, a cause of action with respect to a fraudulent transfer or obligation is extinguished if no action is brought or levy made ... within seven years after the transfer was made or the obligation was incurred.
By enacting § 3439.09(c), the California legislature “clearly meant to provide an overarching, all-embracing maximum time period to attack a fraudulent transfer, no matter whether brought under the [Uniform Fraudulent Transfer Act] or otherwise.” Macedo v. Bosio, 86 Cal.App.4th 1044, 1050 n. 4, 104 Cal.Rptr.2d 1 (2001). The fraudulent transfers relating to the California property allegedly occurred in 1996 and 1997, more than seven years before UTI filed its application to levy judgment on July 31, 2006. UTI’s claim is therefore time-barred under § 3439.09(c).
Because the summary judgment order resolved the only pending claim, the district court did not abuse its discretion in entering final judgment. UTI contends the district court should have first addressed additional claims raised in a verified complaint and amended application. But these new claims were filed after summary judgment was granted and without the district court’s permission. Although the district court implicitly denied UTI leave to file these new claims by entering final judgment, the court advised UTI in a post-judgment order that it could proceed by filing its complaint in a new case. UTI has done just that, filing a materially identical complaint in an ongoing case in the Northern District of California, Universal Trading & Investment Co. v. Dugsberry, Inc., et al., D.C. No. 3:08-cv-03632-CRB. Any issue regarding the implicit rejection of UTI’s post-judgment filings is moot.
We note UTI’s briefs are in violation of Fed. R.App. 28 and the appeal is subject to dismissal for that reason alone. In re O’Brien, 312 F.3d 1135, 1136 (9th *212Cir.2002). The statement of facts is almost entirely argument and references to the record are few and far between. The briefs present numerous issues that are unsupported by argument, and therefore are waived. Mantinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996). UTI distorts the summary judgment record as well as cited legal authority, and engages in baseless attacks on the district court’s fairness.
More seriously, it appears to this court from official district court records that UTI’s attorneys have repeatedly attempted to conceal and misrepresent the disposition of UTI’s application to levy execution on bank accounts during the course of this appeal. In UTI’s initial brief, authored by attorneys George Lambert and John H. Aspelin, UTI argued the district court ignored the application to levy on bank accounts and never addressed the subject in any court order. See Blue Brief at 7. When questioned at oral argument, UTI’s attorney (and Aspelin’s partner), James C. Bridgman, repeatedly insisted the bank account application was overlooked by the district court and that nothing in the record indicated otherwise. The obvious purpose of UTI’s baseless argument was to cast doubt on whether summary judgment resolved all UTI’s claims. But it appears that UTI’s counsel must have known from their own direct involvement in the district court proceedings in this and in related cases, and by a review of the district court docket, that their representations regarding the status of the bank account application were patently false.
Aspelin represented UTI in the district court. On June 6, 2006, Judge Charles R. Breyer referred the bank account levy application to Judge Martin J. Jenkins, to consider whether the application was related to a pending criminal case on Judge Jenkins’ docket, United States v. Lazarenko, D.C. No. CR 00-0284. See Universal Trading & Investment Co. v. Lazarenko, et al., D.C. No. 3:06-MC80086, Docket No. 5. On August 29, 2006, Judge Jenkins found UTI’s bank account levy application related to Lazarenko’s criminal case and accepted reassignment of the bank account issue. See id., Docket No. 10. Aspelin appeared on UTI’s behalf in Lazarenko’s criminal case and filed petitions claiming an interest in bank accounts that were subject to criminal forfeiture. See United States v. Lazarenko, D.C. No. CR 00-0284, Docket Nos. 958-969. After Judge Jenkins dismissed UTI’s claim as an intervening party and denied UTI’s Rule 59(e) motion to alter judgment (also submitted by Aspelin), Aspelin filed UTI’s notice of appeal in Lazarenko’s criminal case on June 15, 2009. Dismissal of the bank account claims is now the subject of a separate appeal, United States v. Universal Trading & Investment Co., 9th Cir. Docket No. 09-10255. Both Aspelin and Lambert filed appearances as UTI’s attorneys in the appeal of the dismissal of UTI’s bank account application in the Lazarenko criminal case. At no time — either before or after oral argument — have Aspelin, Lambert, or Bridgman taken any corrective steps to apprise this court of the true disposition of UTI’s application to levy on the bank accounts or to withdraw their misleading representations.
Separate Orders to Show Cause filed concurrently with this disposition require UTI’s attorneys, George Lambert, John H. Aspelin, and James C. Bridgman, to show cause why they should not be disciplined pursuant to Fed. R.App. P. 46(b) and (c) for making material misrepresentations to this court.
AFFIRMED; ORDERS TO SHOW CAUSE ISSUED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Dan Tuando appeals the district court’s denial of his motion for an extension of *214time to file a notice of appeal and dismissal of his case for failure to comply with court orders.
Although the parties do not raise this precise issue in their briefs, our threshold inquiry is whether Tuando’s appeal is in fact timely, given that the district court did not enter a separate judgment on the order dismissing Tuando’s § 1983 suit. A judgment is not “entered” for notice of appeal purposes until a separate document has been filed, or 150 days have passed since the order was entered. Fed.R.Civ.P. 58(c)(2)(B); Fed. RApp. P. 4(a)(7)(A)(ii). Accordingly, because the district court did not enter a separate judgment on the November 20, 2007 dismissal order, that order did not constitute a final judgment until April 18, 2008. Tuando filed his notice of appeal on April 18, 2008. Thus, Tuando’s appeal is timely, and the district court’s denial of Tuando’s motion for an extension of time to file a notice of appeal is moot. Any remaining confusion as to the district court’s docket sheet is resolved in Tuando’s favor. See United States v. Depew, 210 F.3d 1061, 1065 (9th Cir.2000).
As to the merits of Tuando’s appeal, Tuando contends the dismissal was improper under the so-called Malone factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.1987) (internal quotation marks omitted). Here, “[bjecause the district court did not explicitly consider the five dismissal factors ..., we must review the record independently to determine whether the order of dismissal was an abuse of discretion.” Id. at 130.
We find no abuse of discretion on this record. Tuando repeatedly failed to file pretrial documents, was unavailable for his deposition, and refused to cooperate with the defendants in response to legitimate discovery requests. Significantly, the district court warned Tuando — twice— that his failure to comply with court orders could result in the dismissal of his case. Cf. id. at 133 (“Failure to warn has frequently been a contributing factor in our decisions to reverse orders of dismissal.”). Therefore, our independent evaluation of the dismissal factors convinces us the district court’s order was not an abuse of discretion.
AFFIRMED.
jjjjg disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Plaintiff-Appellant Edward Leandry appeals the district court’s grant of summary judgment in favor of Defendants-Appellees. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our decision. This court has jurisdiction under 28 U.S.C. § 1291. We affirm.
The County of Los Angeles cannot be sued under 42 U.S.C. § 1983 for the acts of its employees, so it could only be liable to Leandry if it had a policy or custom that resulted in the injury that he is alleging. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Recently, Leandry was a class member in Potras v. County of Los Angeles, in which the plaintiffs alleged that Los Angeles County had an unconstitutional pattern or practice of deliberate indifference to inmates’ serious medical needs. No. 04-cv-1229, 2006 WL 4941837 (C.D.Cal. Oct.31, 2006). The defendants’ motion for summary judgment was granted in that case, thereby precluding Lean-dry from making the same claims against the County in the present case. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323-24, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).
However, a final determination on the merits in a suit that alleged unconstitutional patterns or practices does not preclude a later suit involving the same parties for individual instances of such unconstitutional actions. See Cooper v. Fed. Reserve Bank of Rich, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). Leandry’s claims against Defendants Kidwell and Nash allege specific instances of misconduct and are therefore not precluded by Porras.
*216There is no genuine issue of material fact as to whether Defendants Kidwell and Nash were deliberately indifferent to Leandry’s serious medical needs. Although the evidence suggests that Lean-dry’s mental health needs were serious, he was seen repeatedly by jail medical staff, all of whom determined that his symptoms were inconsistent with bipolar disorder. Leandry was seen by medical workers at least twenty-nine times in thirteen months during his detention in Los Angeles County facilities. Leandry was eventually diagnosed with intermittent explosive disorder and prescribed appropriate and seemingly effective medication.
Leandry relies heavily on his previous, expired prescription for Zyprexa, an anti-psychotic medication. Defendants refused to prescribe Zyprexa because they disagreed with Leandry’s opinion that he suffered from bipolar disorder. However, a difference of opinion between medical professionals concerning a diagnosis or appropriate course of treatment does not amount to deliberate indifference to serious medical needs, see Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989), nor does a difference of opinion between the physician and the prisoner, Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). By either measure, Defendants’ determination that Leandry did not suffer from bipolar disorder — and subsequent decision not to prescribe Zyprexa — does not amount to deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The district court properly granted summary judgment in favor of Defendants.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM *
David and Melissa Burke appeal the district court’s grant of summary judgment with respect to their claims of (1) false imprisonment; (2) false arrest; (3) excessive force; and (4) intentional infliction of emotional distress (“IIED”).1
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the grant or denial of summary judgment de novo ” Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.2004), and we affirm the grant as to all of these claims.
I. FALSE IMPRISONMENT: MELISSA BURKE
In California, “[t]he elements of a tortious claim of false imprisonment are (1) *218the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however, brief.” Easton v. Sutter Coast Hosp., 80 Cal.App.4th 485, 95 Cal.Rptr.2d 316, 323 (2000).
Appellees’ contention that Melissa consented to driving to the station because of “her own motherly concern” fails. See Fermino v. Fedco, Inc., 1 Cal.4th 701, 30 Cal.Rptr.2d 18, 872 P.2d 559, 567 (1994) (finding that restraint may be effectuated by threat of arrest). Melissa has failed to raise a triable issue of fact as to whether she was confined, because her “person” was not actually restrained. Under the terms of the threat described by Melissa, she could have sent the insulin to the station with her neighbor or another friend and in doing so, have been free of the threat of arrest.
Accordingly, we AFFIRM the grant of summary judgment as to this claim.
II. FALSE ARREST: DAVID BURKE
Pursuant to the Fourth Amendment, “police officers may not enter a person’s home to arrest him without obtaining an arrest warrant.” United States v. Brobst, 558 F.3d 982, 997 (9th Cir.2009). With respect to warrantless arrests, the Supreme Court has “drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980): see also LaLonde v. County of Riverside, 204 F.3d 947, 955 (9th Cir.2000). The undisputed facts show that David was voluntarily in his front yard — beyond the entrance to his home — and a warrant was not required. Even assuming there was no valid warrant, the officers had probable cause and the arrest did not run afoul of the Fourth Amendment.
Even if a warrant was required, the typographical error as to the name and date did not create factual dispute for trial because no rational trier of fact could return a verdict in David’s favor based on this “scintilla” of evidence.
Thus, we also AFFIRM the grant of summary judgment as to this claim.
III. EXCESSIVE FORCE: DAVID BURKE
A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The analysis requires evaluating “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. This court also considers “whether a warrant was used, ... whether more than one arrestee or officer was involved, ... [and] whether other dangerous or exigent circumstances existed at the time of the arrest.” Chew v. Gates, 27 F.3d 1432, 1440 n. 5 (9th Cir.1994).
In Robinson v. Solano County, this circuit held that “pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger.” 278 F.3d 1007, 1015 (9th Cir.2002) (en banc). Taking the facts in the light most favorable to David, David was cooperative, unarmed, and outnumbered two to one. He was charged only with a misdemeanor. Although a jury may well find that the presence of an unleashed pit bull warranted force, we cannot say that no rational trier of fact could conclude that the force used was unreasonable under the circumstances. The District Court therefore *219erred when it found that summary judgment was proper with respect to whether or not there was a constitutional violation.
Bartholomew, however, is nevertheless entitled to qualified immunity. The facts here are distinguishable from Robinson in several significant respects: (1) David was standing next to an unleashed pit bull; (2) Bartholomew was alone or with only one other officer; and (3) David was seized for the purpose of arrest and with a warrant. We have no cases discussing the use of force where an unarmed suspect is standing next to an unleashed and potentially aggressive dog. Because it would not have been obvious to a reasonable officer that the aiming of a gun in those circumstances would constitute excessive force, we AFFIRM the grant of summary judgment as to this claim.
IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
“The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by the plaintiff; and (3) the plaintiffs emotional distress is actually and proximately the result of defendant’s outrageous conduct.” Myung Chang v. Lederman, 172 Cal.App.4th 67, 90 Cal.Rptr.3d 758, 774 (2009) (internal quotations and marks omitted).
A. David Burke’s IIED Claim Against Officer Bartholomew
“Extreme and outrageous conduct is conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. (internal quotations, marks, and citations omitted). Where a plaintiff fails to establish a Fourth Amendment violation, the officer’s behavior is generally not outrageous. See, e.g., Long v. City of Honolulu, 511 F.3d 901, 908 (9th Cir.2007). Here, although we conclude that, on the facts alleged, David could establish a Fourth Amendment violation, we nonetheless hold that officer Bartholomew is entitled to qualified immunity. In light of this determination and all the surrounding circumstances of David’s arrest, we conclude, as a matter of law, that Bartholomew’s conduct was not outrageous. We therefore affirm the grant of summary judgment in favor of Bartholomew on David’s IIED claim.
B. David and Melissa Burke’s IIED Claim Against Officer Foster
Melissa’s IIED claim against Foster fails because she has presented no evidence of severe emotional distress. David’s claim also fails for lack of causation. The symptoms he described were subsequent to the arrest—at no point did he testify that the events surrounding B.F.’s removal caused him emotional distress. Moreover, regardless of fault, Foster is immune from suit pursuant to California Government Code section 821.61. See Asgari v. City of L.A., 15 Cal.4th 744, 63 Cal.Rptr.2d 842, 937 P.2d 273, 280-81 (1997); Amylou R. v. County of Riverside, 28 Cal.App.4th 1205, 34 Cal.Rptr.2d 319, 321-23 (1994). We therefore AFFIRM the grant of summary judgment on Melissa and David’s IIED claim against Foster.
AFFIRMED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Melissa, together with Clifton Farina, also appeals the district court’s grant of summary judgment with respect to their claims under 42 U.S.C. § 1983 against Foster and the County of Alameda. These claims are discussed in an accompanying published opinion.
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MEMORANDUM **
Defendant Deonte Santos was convicted of using a facility or means of interstate commerce to persuade, induce, and entice *224a minor to engage in unlawful sexual conduct, and aiding and abetting, in violation of 18 U.S.C. §§ 2422(b) and 2 (Count I), and sex trafficking of a child, and aiding and abetting, in violation of 18 U.S.C. §§ 1591(a)(1) and 2 (Count II). Defendant appeals his conviction on Count II only. 1. We review de novo a challenge to the sufficiency of evidence. United States v. Schales, 546 F.3d 965, 974 (9th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1397, 173 L.Ed.2d 640 (2009). We must view the evidence in the light most favorable to the government and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.2003).
Sufficient evidence supports the jury’s finding that Defendant’s actions affected interstate commerce. He used a cell phone whose service provider is T-Mobile, a business in interstate commerce, to recruit the minor, manage her prostitution, and arrange her travel from Los Angeles to Seattle. He made numerous interstate calls using this phone. He used America Online instant messaging to coax the minor to work for him as a prostitute. See United States v. Sutcliffe, 505 F.3d 944, 953 (9th Cir.2007) (holding that the electronic submission of information across state lines qualifies as “in or affecting interstate commerce” (internal quotation marks and brackets omitted)). Finally, he provided the minor with Durex condoms, which are manufactured abroad and imported into the United States through ports in Los Angeles and Charleston, South Carolina.
2. We review the district court’s formulation of jury instructions for an abuse of discretion, considering “‘the instructions as a whole, and in context.’ ” United States v. Franklin, 321 F.3d 1231, 1240-41 (9th Cir.2003) (quoting United States v. Stapleton, 293 F.3d 1111, 1114 (9th Cir.2002)). We review de novo whether a jury instruction correctly states the law. Dang v. Cross, 422 F.3d 800, 804 (9th Cir.2005). Whether an instruction violates due process by creating an unconstitutional presumption or inference likewise is subject to de novo review. United States v. Warren, 25 F.3d 890, 897 (9th Cir.1994).
The district court correctly formulated the jury instruction at issue. The district court properly directed the jury to decide whether Defendant’s actions had a minimal effect on interstate commerce. Further, the district court’s definitions of “in interstate commerce” and “affects interstate commerce” properly stated the law. The jury instruction also did not create an unconstitutional presumption or inference because it did not instruct the jury that any element had been satisfied, nor did it unduly focus on a single fact in a manner that created a danger of ignoring other evidence.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
We have reviewed the record and petitioners’ filings in this court. We conclude that petitioners have failed to raise a colorable constitutional or legal claim to invoke our jurisdiction over this petition for review under the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D). See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005), as adopted by, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir.2006) (en banc). Accordingly, we dismiss this petition for review because we lack jurisdiction to review the agency’s discretionary determination that petitioners did not demonstrate their removal would result in exceptional and extremely unusual hardship to a qualifying relative. See 8 U.S.C. § 1252(a)(2)(B)®; MartinezRosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005); Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003).
The fact that petitioners dispute the Immigration Judge’s findings of fact makes no difference. “[W]e have held that the ‘exceptional and extremely unusual hardship’ standard is subjective, and thus that it does implicate the ‘value judgment of the person or entity examining the issue,’ Romero-Torres, 327 F.3d at 890-91, [and therefore] we must conclude that we lack *226jurisdiction to review an IJ’s application of such standard to the facts of a case, be they disputed or otherwise.” Mendez-Castro v. Mukasey, 552 F.3d 975, 981 (9th Cir.2009) (underlining emphasis added).
Finally, petitioners argue the Immigration Judge was biased against them and violated their rights (1) to due process; (2) “to raise their children with a desired appreciation for their cultural and ethnic heritage, without governmental interference”; (3) to freedom of association; and (4) to freedom of religion — -all because the Immigration Judge noted petitioners attended a Catholic church mass in Spanish and should not have trouble finding such a service in Mexico. We do not have jurisdiction to consider these arguments because petitioners did not exhaust their administrative remedies by raising this claim in their brief before the Board of Immigration Appeals. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (holding that although the Board of Immigration Appeals cannot review constitutional challenges, it can review an error in the processing of a case, even if the error is a violation of due process, because it can order the Immigration Judge to correct the error).
Further, our review of the record discloses that the Immigration Judge did not in any way punish petitioners for their choices, nor limit their freedom to raise their children or practice their religion. Thus, petitioners have no colorable claim of bias or of a violation of any of these rights. See Fernandez v. Mukasey, 520 F.3d 965, 966-67 (9th Cir.2008) (holding petitioners’ claim that the standards for cancellation of removal violated their right to freedom of religion was not valid because they failed to show the statute required them to modify them behavior or beliefs).
All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) and the tolling of the voluntary departure period shall continue in effect until issuance of the mandate. Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir.2004) (order); Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004).
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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ORDER
PER CURIAM.
John Tarkowski responds to the court’s March 18, 2009 order directing Tarkowski to show cause why his appeal should not be dismissed as untimely. The Secretary of Veterans Affairs also responds.
On September 5, 2008, the United States Court of Appeals for Veterans Claims entered judgment in Tarkowski’s case. On December 3, 2008, or 89 days after entry of judgment, Tarkowski filed a notice of appeal with the United States Court of Appeals for the Seventh Circuit. The appeal was subsequently transferred to this court.
To be timely, a notice of appeal must be received by the Court of Appeals for Veterans Claims within 60 days of the entry of *419judgment. See 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1). Tarkowski argues that the Seventh Circuit failed to appoint him counsel or provide him sufficient clarification. The timely filing of his notice of appeal in a civil case is a jurisdictional requirement that cannot be waived. Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Here, even if Tarkowski’s appeal is treated as having been filed with the Court of Appeals for Veterans Claims on December 3, when it was received by the Seventh Circuit, his appeal would still be untimely. Because the appeal was not received within the statutory deadline for filing, we must dismiss this appeal as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) All sides shall bear their own costs.
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SUMMARY ORDER
Ayfer Yalincak, a native and citizen of Turkey, seeks review of: (1) a May 22, 2008 order of the BIA affirming the January 16, 2008 decision of Immigration Judge (“IJ”) Michael W. Straus, which denied her applications for withholding of removal and relief under the Convention Against Torture (“CAT”), and for a waiver of inadmissibility under INA § 209(c), In re Ayfer Yalincak, No. A073 393 720 (B.I.A. May 22, 2008), aff'g No. A073 393 720 (Immig. Ct. Hartford, CT Jan. 16, 2008); and (2) a July 31, 2008 order of the BIA denying her motion to reconsider, In re Ayfer Yalincak, No. A073 393 720 (B.I.A. July 31, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
At the outset, we note that because Yalincak was charged as removable based on her conviction of an aggravated felony, our jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(C), such that we may review only constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir.2006).
I. Dkt. No. 08-3014-ag (L): Withholding of Removal
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). *587We review de novo questions of law and the application of law to undisputed fact. See Salimatou, Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
A. Aggravated Felony
In her brief to this Court, Yalincak argues that she was not convicted of an aggravated felony. Ordinarily, we would retain jurisdiction to review such an argument. See Vargas-Sarmiento v. U.S. Dep’t of Justice, 448 F.3d 159, 164 (2d Cir.2006). However, as the Government contends, this argument, which Yalincak makes in this Court in the first instance, is not exhausted. Because the agency never had the opportunity to consider it, we decline to do so. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1, 122 (2d Cir.2007) (reaffirming that this Court “may consider only those issues that formed the basis for [the BIA’s] decision”); see also Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004) (holding that petitioner failed to exhaust his claim that his manslaughter conviction should not qualify as an aggravated felony).2
B. Adverse Credibility Determination
To the extent that Yalincak argues that the agency’s adverse credibility determination was not supported by substantial evidence, because these arguments merely quarrel with the agency’s fact-finding, we lack jurisdiction to review them.3 See Xiao Ji Chen, 471 F.3d at 329-30.
C. Due Process
Yalincak also advances a due process argument arguably so insubstantial and frivolous as to be beyond the scope of our review. See Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008) (providing that this Court lacks jurisdiction to review any legal argument that is so insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction). Yet, even assuming our jurisdiction, there is no merit to Yalincak’s claims that the IJ violated her due process rights by not permitting her counsel to make a closing argument and by preventing her from presenting evidence. The record reflects that Yalincak’s attorney never requested the opportunity to make a closing argument, and that the IJ accepted all of Yalincak’s documentary evidence.
D. Waiver of Inadmissibility
As relief from removal, Yalincak sought a waiver of inadmissibility under INA § 209(c). In order to merit such a waiver, an alien must show that she should be admitted to the United States “for humanitarian purposes,” or “to assume family unity.” 8 U.S.C. § 1159(c); see Matter of Jean, 23 I. & N. Dec. 373 (AG 2002). The agency denied Yalincak’s request for a waiver because, despite hardships to her family, she was convicted of two separate “fraud schemes,” and thus did not merit a favorable exercise of discretion. To the extent that Yalincak argues that the agency failed to properly weigh the factors in considering her eligibility for the waiver, her arguments merely quarrel with the *588agency’s exercise of discretion. This Court lacks jurisdiction to review such arguments. See 8 U.S.C. § 1252(a)(2)(C); Xiao Ji Chen, 471 F.3d at 329-30.
II. Dkt. No. 08-4231-ag (Con): Motion to Reconsider
Our jurisdiction to review the BIA’s denial of Yalincak’s motion to reconsider is no greater than our jurisdiction to review the agency’s underlying denial of relief. See Durant v. INS, 393 F.3d 113, 115-16 (2d Cir.2004) (“While final orders of removal and orders denying motions to reopen are treated as separate final orders and require separate petitions for review, ... these orders are sufficiently connected that permitting review of a motion to reopen when § 1252(a)(2)(C) bars review of the final order of removal would provide an improper backdoor method of challenging a removal order.”). Accordingly, we limit our analysis to those arguments that may be considered constitutional claims or questions of law. See Xiao Ji Chen, 471 F.3d at 329-30.
Yalincak argues that the agency erred in denying her application for withholding of removal and her waiver of inadmissibility because she was previously found credible and granted asylum. She contends that the agency was barred from relitigating her past persecution claim and credibility under the law of the case doctrine.4 “The law of the case ordinarily forecloses re-litigation of issues expressly or impliedly decided by the appellate court.” United States v. Quintien, 306 F.3d 1217, 1229 (2d Cir.2002) (internal quotation marks omitted); see also Matter of S-Y-G-, 24 I. & N. Dec. 247, 250 (BIA 2007) (applying the law of the case doctrine to the IJ’s previous adverse credibility determination). Although Yalincak was previously granted asylum, the Government properly placed her in removal proceedings upon her conviction of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii); see also 8 C.F.R. § 1208.24(f). The IJ also properly conducted a hearing on the merits of her new application for withholding of removal. Even assuming that the law of the case doctrine applied at the agency level, we find unpersuasive Yalincak’s argument that because a prior IJ found her credible and granted her asylum, another IJ was required to find her credible with respect to her application for withholding of removal with its higher burden of proof. See Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir.2008) (explaining that the law of the case doctrine is discretionary and need not be followed if “cogent” and “compelling” reasons exist such as “the availability of new evidence”); see also Robleto-Pastora v. Holder, 567 F.3d 437, 442-45 (9th Cir.2009) (finding that the alien did not suffer past persecution and failed to demonstrate that he was eligible for withholding of removal even though he was previously granted asylum).
Yalincak also argues that the IJ erred by considering her 1995 conviction for practicing medicine without a license in denying her INA § 209(c) waiver of inadmissibility under Matter of Jean, 23 I. & N. Dec. 373, 376 (A.G.2002). However, it is within the IJ’s discretion to balance the *589“adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of [a waiver] appear[ed] in the best interests of this country.” Garcia-Padron v. Holder, 558 F.3d 196, 199-200 (2d Cir.2009). Indeed, in evaluating a request for discretionary relief, evidence of unfavorable conduct, including criminal convictions, may be appropriately considered. See Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995). Thus, the IJ properly considered Yalincak’s prior conviction in determining that she was ineligible for a 209(c) waiver. See Matter of Jean, 23 I. & N. Dec. at 376.
Finally, Yalincak claims that her due process rights were violated and that she did not receive fair proceedings because she had only a “minor to minimal role” in the conspiracy to commit wire fraud, and that the agency did not permit her counsel “to present the nature” of her involvement in the offense. The record is clear, however, that Yalincak’s counsel discussed her role in the conspiracy throughout the proceedings. Further, Yalincak’s own testimony belies her claim because she testified that she was only minimally involved.
For the foregoing reasons, the petitions for review are DENIED. As we have completed oui’ review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Yalincak further argues that due to “intervening case law,” in the form of the Ninth Circuit's decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007), this Court should remand her case. The Ninth Circuit's precedent is not binding here. Even if it were, as the Government points out, the Supreme Court's more recent decision in Nijhawan v. Holder, - U.S. -, 129 S.Ct. 2294, 2298, 174 L.Ed.2d 22 (2009) provides further support for the agency's decision.
. Yalincak does not challenge the agency’s denial of her request for CAT relief.
. The Government argues that because Yalincak did not raise her collateral estoppel or issue preclusion arguments before the agency, we lack jurisdiction to review those unexhausted arguments. However, such arguments are "subsidiary legal arguments” that need not have been exhausted. See Gill v. INS, 420 F.3d 82, 85-86 (2d Cir.2005). Nevertheless, those arguments fail for the same reason that Yalincak's "law of the case” argument fails.
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https://www.courtlistener.com/api/rest/v3/opinions/8474607/
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SUMMARY ORDER
The 60-day voluntary departure period, which began to run on September 3, 2008, will be stayed from the October 1, 2008 filing date of Jaramillo’s motion for a stay of voluntary departure until the date that this court’s mandate issues. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474609/
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SUMMARY ORDER
Yong Qun Dong, a citizen of the People’s Republic of China, seeks review of the BIA’S January 2, 2009 order affirming the January 30, 2007 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yong Qun Dong, No. A098 255 768 (B.I.A. Jan. 2, 2009), aff'g No. A098 255 768 (Immig. Ct. N.Y. City Jan. 30, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this ease.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review the IJ’s decision as a whole. See Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). In doing so, we review factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). For asylum applications governed by the REAL ID Act, the agency may base a credibility finding on an asylum applicant’s “demean- or, candor, or responsiveness,” the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” See 8 U.S.C. § 1158(b)(l)(B)(iii); Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
We conclude that the agency’s adverse credibility determination was supported by substantial evidence. It was not error for the IJ to rely on the record of Dong’s airport interview in making his adverse credibility determination. During Dong’s airport interview, Dong first claimed that he feared persecution because he practiced Falun Gong, but he later admitted that he had lied and was not a Falun Gong practitioner. In finding the record of the airport interview sufficiently reliable, the agency properly applied the framework set forth in Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004). Dong contends that the airport interview was unreliable because he was “forced” by the interviewing officer to admit his involvement with a smuggler who was also on Dong’s flight from China, and that this pressure caused him to feel that he needed to lie about his practice of Falun Gong. He also claims that, because he was unsure how the U.S. government viewed Falun Gong, *592he was reluctant to disclose his involvement. The IJ found these explanations “fundamentally incoherent,” and we find no error in that conclusion. See Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.2007); Guan v. Gonzales, 432 F.3d 391, 396, 397 n. 6, 399 n. 8 (2d Cir.2005).
Given the IJ’s finding that the record of Dong’s airport interview was reliable, it was reasonable for the agency to note the inconsistency between Dong’s admission that he was not a Falun Gong practitioner, and his later testimony regarding his knowledge and practice of Falun Gong. 8 U.S.C. § 1158(b)(l)(B)(iii). This inconsistency was an ample basis for the agency’s adverse credibility determination. See id.
Because the only evidence of a threat to Dong’s life or freedom relied upon his credibility, the adverse credibility determination in this case necessarily precludes success on Dong’s claims for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.1991). Dong does not challenge the agency’s denial of his request for CAT relief.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8474611/
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SUMMARY ORDER
Chunji Jin, a native and citizen of China, seeks review of a November 28, 2008 order of the BIA affirming the April 13, 2006 decision of Immigration Judge (“IJ”), which pretermitted her application for asylum, and denied her application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Chunji Jin, No. A097 956 612 (B.I.A. Nov. 28, 2008), aff'g No. A097 956 612 (Immig. Ct. N.Y. City Apr. 13, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in some respects but not others, this court reviews the IJ’s decision as modified by the BIA decision. See Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Because the BIA did not uphold the IJ’s adverse credibility determination, we assume Jin’s credibility. Id. We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
An applicant’s credible testimony alone may suffice to carry her burden of proof in establishing eligibility for relief. See 8 U.S.C. § 1158(b)(l)(B)(ii); 8 U.S.C. § 1231(b)(3)(C); see also Liu v. Holder, 575 F.3d 193, 196-97 (2d Cir.2009). In this case, however, the agency denied Jin’s application for withholding of removal because she failed to provide reasonably available corroborative evidence concerning material elements of her claim. Under the REAL ID Act amendments, which apply to Jin’s application for relief, “[wjhere the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” See 8 U.S.C. § 1158(b)(l)(B)(ii); Matter of S-B-, 24 I. & N. Dec. 42, 45 (B.I.A.2006). “No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence ... *594unless the court finds ... that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
The record supports the agency’s conclusion that Jin failed to provide reasonably available corroborative evidence. See Liu, 575 F.3d at 196. The BIA explained that although Jin testified that she was forced to undergo an abortion in China, she did not provide any affidavits in support of her claim or “any independent medical or other corroborating evidence, despite testifying that she had daily communication with her husband in China.” The BIA noted that the IJ asked Jin why she failed to provide an affidavit from her husband corroborating her testimony but that she failed to provide a reasonable explanation for its absence. Indeed, Jin never provided an explanation for its absence during her testimony, in her brief to the agency, or in her brief to this court. Thus, the agency did not err in finding that Jin failed to provide reasonably available corroborative evidence in support of her claim. See Liu, 575 F.3d at 196 (finding that an IJ may reasonably rely on a lack of corroborating evidence where there is “no indication on the record that such evidence was unavailable, and [petitioner] has not provided an explanation on appeal for his failure to present such corroborating evidence”).
Substantial evidence supports the agency’s finding that Jin failed to present reasonably available corroboration. The agency reasonably found that she failed to meet her burden of proof in establishing eligibility for withholding of removal. See 8 C.F.R. § 1208.16(b).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Anthony Spinale and G & T Terminal Packaging Co., Inc. appeal the dismissal of their claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18.U.S.C. § 1961 et seq. Appellants challenge both the district court’s October 3, 2005 dismissal of their claim against William Cashin and its November 19, 2007, 2007 WL 4115903, grant of summary judgment in favor of David L. Ball, Paul I. Cutler, Glenn A. Jones, Elias Malavet, Michael Strusiak, Michael Tsamis, Thomas C. Vincent, and Edmund R. Esposito (“pro se appellees”). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. William Cashin
We review for abuse of discretion the dismissal of appellants’ claims against Cashin based on their failure to serve him with process within 120 days of filing their complaint. 2 See Fed.R.Civ.P. 4(m); Nagy v. Dwyer, 507 F.3d 161, 163 (2d Cir.2007). Far from demonstrating good cause for the delay, appellants have failed even to show that they exercised due diligence in locating Cashin. Rather, their failure to take basic measures, e.g., serving the government with an interrogatory requesting Cashin’s address, evidences negligence. Nor have appellants offered any evidence substantiating their claim that the government obstructed their efforts. Indeed, they acknowledge that they ultimately located Cashin by searching a public internet database. See McGregor v. United States, 933 F.2d 156, 160 (2d Cir.1991). Thus we detect no abuse of discretion in the district court’s refusal to overlook appellants’ fourteen-month delay in effecting service, either for cause or as a matter of discretion. See Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir.2007) (holding dismissal was not abuse of discretion where no good cause existed for delay of service until four days after 120-day period had expired).
We likewise review for abuse of discretion the district court’s refusal to disquali*601fy government counsel from representing Cashin. See United States v. Locascio, 6 F.3d 924, 931 (2d Cir.1993). The Attorney General may send “any officer of the Department of Justice ... to attend to the interests of the United States in a suit pending in a court of the United States.” 28 U.S.C. § 517. Appellants claim it was “inconceivable” that it was in the government’s interests to represent Cashin as to alleged racketeering acts committed before March 23, 1999, when he began cooperating with the government. Appellants’ Br. at 36. However, the complaint charges Cashin with racketeering acts occurring only after that date. As to those acts, even appellants appear to concede the government’s interest in representing Cashin. That interest would have been sufficient to support the government’s participation even if appellants had been permitted to amend their complaint to add alleged racketeering acts occurring dux-ing the twelve days before Cashin began cooperating.1 Thus we detect no abuse of discretion in the district court’s determination that representing Cashin was within the government’s own “broad discretion.” Hall v. Clinton, 285 F.3d 74, 80 (D.C.Cir.2002).
2. Pro Se Appellees
Appellants also challenge the district court’s sua sponte grant of summary judgment in favor of the pro se appellees. Summary judgment is proper only if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). We review a summary judgment award de novo, “examining the facts in the light most favorable to the non-moving party and resolving all factual ambiguities in that party’s favor.” Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir.2009). We will reverse a sua sponte grant of summary judgment if the district court failed to give prior notice and the losing party was procedurally prejudiced, ie., “if it [wa]s surprised by the district court’s action and that surprise result[ed] in [its] failure to present evidence in support of its position.” Bridgeway Corp. v. Citibank, 201 F.3d 134, 139 (2d Cir.2000). In contrast, if “the party either cannot claim to have been surprised by the distxict court’s action or if, notwithstanding its surprise, the party had no additional evidence to bring, it cannot plausibly argue that it was prejudiced by the lack of notice.” Id. at 140.
Here, appellants expressly conceded during a pretrial conference that they lacked any evidence showing that appellees’ actions were the proximate cause of damages they suffered, a necessary element of a civil RICO claim. See 18 U.S.C. § 1964(c); Bank of China v. NBM LLC, 359 F.3d 171, 176 (2d Cir.2004). Appellants now claim they were surprised by the dismissal and fault as unfair the district court’s requirement that they present additional evidence within one day. As the district court pointed out, however, appellants should have been aware that a computation of damages would be required. See Fed.R.Civ.P. 26(a)(l)(A)(iii). Moreover, even on appeal, appellants do not claim to possess evidence of causation, but concede that it is “impossible ... to show specific losses on any specific shipment.” Appellant’s Br. at 21. Thus, whether the district court permitted appellants one day or one year made no difference. While *602appellants may indeed have been surprised by the grant of summary judgment, they were not prejudiced, because they were— and are — admittedly unable to adduce evidence compelling any other outcome. See Bridgeway Corp. v. Citibank, 201 F.3d at 140.
We have considered appellants’ other arguments, and they are without merit. Accordingly, the judgment of the district court is AFFIRMED.2
. Because we conclude that appellants' claims against Cashin were properly dismissed based on failure of timely service, we need not reach appellants’ contention that they should have been permitted to amend their complaint to include additional racketeering acts committed by Cashin. In any event, the proposed amendment would not have affected our conclusions about the dismissal or (as noted above) about Cashin’s representation by the government.
. Because we affirm the district court’s judgment of dismissal, the motion for dismissal filed in this appeal by pro se appellee Michael Tsamis is denied as moot.
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MEMORANDUM ***
Dan Tuando appeals the district court’s denial of his motion for an extension of *214time to file a notice of appeal and dismissal of his case for failure to comply with court orders.
Although the parties do not raise this precise issue in their briefs, our threshold inquiry is whether Tuando’s appeal is in fact timely, given that the district court did not enter a separate judgment on the order dismissing Tuando’s § 1983 suit. A judgment is not “entered” for notice of appeal purposes until a separate document has been filed, or 150 days have passed since the order was entered. Fed.R.Civ.P. 58(c)(2)(B); Fed. RApp. P. 4(a)(7)(A)(ii). Accordingly, because the district court did not enter a separate judgment on the November 20, 2007 dismissal order, that order did not constitute a final judgment until April 18, 2008. Tuando filed his notice of appeal on April 18, 2008. Thus, Tuando’s appeal is timely, and the district court’s denial of Tuando’s motion for an extension of time to file a notice of appeal is moot. Any remaining confusion as to the district court’s docket sheet is resolved in Tuando’s favor. See United States v. Depew, 210 F.3d 1061, 1065 (9th Cir.2000).
As to the merits of Tuando’s appeal, Tuando contends the dismissal was improper under the so-called Malone factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.1987) (internal quotation marks omitted). Here, “[bjecause the district court did not explicitly consider the five dismissal factors ..., we must review the record independently to determine whether the order of dismissal was an abuse of discretion.” Id. at 130.
We find no abuse of discretion on this record. Tuando repeatedly failed to file pretrial documents, was unavailable for his deposition, and refused to cooperate with the defendants in response to legitimate discovery requests. Significantly, the district court warned Tuando — twice— that his failure to comply with court orders could result in the dismissal of his case. Cf. id. at 133 (“Failure to warn has frequently been a contributing factor in our decisions to reverse orders of dismissal.”). Therefore, our independent evaluation of the dismissal factors convinces us the district court’s order was not an abuse of discretion.
AFFIRMED.
jjjjg disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Plaintiff-Appellant Edward Leandry appeals the district court’s grant of summary judgment in favor of Defendants-Appellees. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our decision. This court has jurisdiction under 28 U.S.C. § 1291. We affirm.
The County of Los Angeles cannot be sued under 42 U.S.C. § 1983 for the acts of its employees, so it could only be liable to Leandry if it had a policy or custom that resulted in the injury that he is alleging. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Recently, Leandry was a class member in Potras v. County of Los Angeles, in which the plaintiffs alleged that Los Angeles County had an unconstitutional pattern or practice of deliberate indifference to inmates’ serious medical needs. No. 04-cv-1229, 2006 WL 4941837 (C.D.Cal. Oct.31, 2006). The defendants’ motion for summary judgment was granted in that case, thereby precluding Lean-dry from making the same claims against the County in the present case. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323-24, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).
However, a final determination on the merits in a suit that alleged unconstitutional patterns or practices does not preclude a later suit involving the same parties for individual instances of such unconstitutional actions. See Cooper v. Fed. Reserve Bank of Rich, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). Leandry’s claims against Defendants Kidwell and Nash allege specific instances of misconduct and are therefore not precluded by Porras.
*216There is no genuine issue of material fact as to whether Defendants Kidwell and Nash were deliberately indifferent to Leandry’s serious medical needs. Although the evidence suggests that Lean-dry’s mental health needs were serious, he was seen repeatedly by jail medical staff, all of whom determined that his symptoms were inconsistent with bipolar disorder. Leandry was seen by medical workers at least twenty-nine times in thirteen months during his detention in Los Angeles County facilities. Leandry was eventually diagnosed with intermittent explosive disorder and prescribed appropriate and seemingly effective medication.
Leandry relies heavily on his previous, expired prescription for Zyprexa, an anti-psychotic medication. Defendants refused to prescribe Zyprexa because they disagreed with Leandry’s opinion that he suffered from bipolar disorder. However, a difference of opinion between medical professionals concerning a diagnosis or appropriate course of treatment does not amount to deliberate indifference to serious medical needs, see Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989), nor does a difference of opinion between the physician and the prisoner, Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). By either measure, Defendants’ determination that Leandry did not suffer from bipolar disorder — and subsequent decision not to prescribe Zyprexa — does not amount to deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The district court properly granted summary judgment in favor of Defendants.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM *
David and Melissa Burke appeal the district court’s grant of summary judgment with respect to their claims of (1) false imprisonment; (2) false arrest; (3) excessive force; and (4) intentional infliction of emotional distress (“IIED”).1
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the grant or denial of summary judgment de novo ” Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.2004), and we affirm the grant as to all of these claims.
I. FALSE IMPRISONMENT: MELISSA BURKE
In California, “[t]he elements of a tortious claim of false imprisonment are (1) *218the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however, brief.” Easton v. Sutter Coast Hosp., 80 Cal.App.4th 485, 95 Cal.Rptr.2d 316, 323 (2000).
Appellees’ contention that Melissa consented to driving to the station because of “her own motherly concern” fails. See Fermino v. Fedco, Inc., 1 Cal.4th 701, 30 Cal.Rptr.2d 18, 872 P.2d 559, 567 (1994) (finding that restraint may be effectuated by threat of arrest). Melissa has failed to raise a triable issue of fact as to whether she was confined, because her “person” was not actually restrained. Under the terms of the threat described by Melissa, she could have sent the insulin to the station with her neighbor or another friend and in doing so, have been free of the threat of arrest.
Accordingly, we AFFIRM the grant of summary judgment as to this claim.
II. FALSE ARREST: DAVID BURKE
Pursuant to the Fourth Amendment, “police officers may not enter a person’s home to arrest him without obtaining an arrest warrant.” United States v. Brobst, 558 F.3d 982, 997 (9th Cir.2009). With respect to warrantless arrests, the Supreme Court has “drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980): see also LaLonde v. County of Riverside, 204 F.3d 947, 955 (9th Cir.2000). The undisputed facts show that David was voluntarily in his front yard — beyond the entrance to his home — and a warrant was not required. Even assuming there was no valid warrant, the officers had probable cause and the arrest did not run afoul of the Fourth Amendment.
Even if a warrant was required, the typographical error as to the name and date did not create factual dispute for trial because no rational trier of fact could return a verdict in David’s favor based on this “scintilla” of evidence.
Thus, we also AFFIRM the grant of summary judgment as to this claim.
III. EXCESSIVE FORCE: DAVID BURKE
A claim against law enforcement officers for excessive force is analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The analysis requires evaluating “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. This court also considers “whether a warrant was used, ... whether more than one arrestee or officer was involved, ... [and] whether other dangerous or exigent circumstances existed at the time of the arrest.” Chew v. Gates, 27 F.3d 1432, 1440 n. 5 (9th Cir.1994).
In Robinson v. Solano County, this circuit held that “pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, especially where the individual poses no particular danger.” 278 F.3d 1007, 1015 (9th Cir.2002) (en banc). Taking the facts in the light most favorable to David, David was cooperative, unarmed, and outnumbered two to one. He was charged only with a misdemeanor. Although a jury may well find that the presence of an unleashed pit bull warranted force, we cannot say that no rational trier of fact could conclude that the force used was unreasonable under the circumstances. The District Court therefore *219erred when it found that summary judgment was proper with respect to whether or not there was a constitutional violation.
Bartholomew, however, is nevertheless entitled to qualified immunity. The facts here are distinguishable from Robinson in several significant respects: (1) David was standing next to an unleashed pit bull; (2) Bartholomew was alone or with only one other officer; and (3) David was seized for the purpose of arrest and with a warrant. We have no cases discussing the use of force where an unarmed suspect is standing next to an unleashed and potentially aggressive dog. Because it would not have been obvious to a reasonable officer that the aiming of a gun in those circumstances would constitute excessive force, we AFFIRM the grant of summary judgment as to this claim.
IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
“The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by the plaintiff; and (3) the plaintiffs emotional distress is actually and proximately the result of defendant’s outrageous conduct.” Myung Chang v. Lederman, 172 Cal.App.4th 67, 90 Cal.Rptr.3d 758, 774 (2009) (internal quotations and marks omitted).
A. David Burke’s IIED Claim Against Officer Bartholomew
“Extreme and outrageous conduct is conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. (internal quotations, marks, and citations omitted). Where a plaintiff fails to establish a Fourth Amendment violation, the officer’s behavior is generally not outrageous. See, e.g., Long v. City of Honolulu, 511 F.3d 901, 908 (9th Cir.2007). Here, although we conclude that, on the facts alleged, David could establish a Fourth Amendment violation, we nonetheless hold that officer Bartholomew is entitled to qualified immunity. In light of this determination and all the surrounding circumstances of David’s arrest, we conclude, as a matter of law, that Bartholomew’s conduct was not outrageous. We therefore affirm the grant of summary judgment in favor of Bartholomew on David’s IIED claim.
B. David and Melissa Burke’s IIED Claim Against Officer Foster
Melissa’s IIED claim against Foster fails because she has presented no evidence of severe emotional distress. David’s claim also fails for lack of causation. The symptoms he described were subsequent to the arrest—at no point did he testify that the events surrounding B.F.’s removal caused him emotional distress. Moreover, regardless of fault, Foster is immune from suit pursuant to California Government Code section 821.61. See Asgari v. City of L.A., 15 Cal.4th 744, 63 Cal.Rptr.2d 842, 937 P.2d 273, 280-81 (1997); Amylou R. v. County of Riverside, 28 Cal.App.4th 1205, 34 Cal.Rptr.2d 319, 321-23 (1994). We therefore AFFIRM the grant of summary judgment on Melissa and David’s IIED claim against Foster.
AFFIRMED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Melissa, together with Clifton Farina, also appeals the district court’s grant of summary judgment with respect to their claims under 42 U.S.C. § 1983 against Foster and the County of Alameda. These claims are discussed in an accompanying published opinion.
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MEMORANDUM *
Monica Hoeft-Ross, Hiawatha HoeftRoss (Monica’s husband), and their children, Kirsten and Martin Hoeft-Ross (collectively referred to as “appellants”), *222brought an action against Monica s parents, Werner and Christel Hoeft (the “Hoefts”) under the Fair Housing Act and 42 U.S.C. §§ 1981,1982, and 1985. Appellants now appeal all of the district court’s decision, except the summary judgment order for the Fair Housing Act and 42 U.S.C. § 1985 claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. As to the summary judgment motion, appellants argue there was sufficient evidence to defeat the motion. We disagree. The court reviews de novo a district court’s decision to grant summary judgment. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.2004). Federal Rule of Civil Procedure 56(c) articulates the familiar standard: summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact that the movant is entitled to judgment as a matter of law.” In order to rebut a party’s motion for summary judgment, the non-moving party must point to specific facts supported by the record, which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir.2000). Such specific facts, however, may not come from mere “allegations or denials in its own pleading.” Fed.R.Civ.P. 56(e)(2). Additionally, a mere declaration (not in the form of an affidavit) does not qualify as a “specific fact[ ] showing a genuine issue for trial.” Id.
The Ninth Circuit has held a plaintiff proves a prima facie housing discrimination claim when he or she shows “(1) that he or she is a member of a racial minority; (2) that he or she applied for and was qualified to rent or purchase certain property or housing; (3) that he or she was rejected; and (4) that the housing or rental opportunity remained available thereafter.” Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 551 (9th Cir.1980). The record shows that appellants offered no evidence to prove requirements (2) and (4).
2. The panel reviews a denial of a Rule 60(b)(1) motion for abuse of discretion. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir.2000). This Court has held that, when determining whether a party’s neglect is excusable under Federal Rule of Civil Procedure 60(b), it should consider “[ (1) ] the danger or prejudice [to the opposing party], [ (2) ] the length of the delay and its potential impact on judicial proceedings, [ (3) ] the reason for the delay, including whether it was within the reasonable control of the movant, and [ (4) ] whether the movant acted in good faith.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir.1997). So long as a court, guided by these factors, engages in an equitable analysis, it does not matter whether the court explicitly articulates the Briones factors. Bateman, 231 F.3d at 1224 (quoting Briones, 116 F.3d at 381). The district court engaged in the analysis and did not rely on any erroneous facts. Therefore, we cannot say the district court abused its discretion in denying the Rule 60(b)(1) motion.
3. As to the discovery sanctions, appellants waived this argument. When making their argument against summary judgment, appellants failed to argue that their ability to survive the summary judgment motion was hindered, by the Magistrate’s discovery sanction. There are no exceptional circumstances justifying our review of the argument on appeal. See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Defendant Deonte Santos was convicted of using a facility or means of interstate commerce to persuade, induce, and entice *224a minor to engage in unlawful sexual conduct, and aiding and abetting, in violation of 18 U.S.C. §§ 2422(b) and 2 (Count I), and sex trafficking of a child, and aiding and abetting, in violation of 18 U.S.C. §§ 1591(a)(1) and 2 (Count II). Defendant appeals his conviction on Count II only. 1. We review de novo a challenge to the sufficiency of evidence. United States v. Schales, 546 F.3d 965, 974 (9th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1397, 173 L.Ed.2d 640 (2009). We must view the evidence in the light most favorable to the government and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Odom, 329 F.3d 1032, 1034 (9th Cir.2003).
Sufficient evidence supports the jury’s finding that Defendant’s actions affected interstate commerce. He used a cell phone whose service provider is T-Mobile, a business in interstate commerce, to recruit the minor, manage her prostitution, and arrange her travel from Los Angeles to Seattle. He made numerous interstate calls using this phone. He used America Online instant messaging to coax the minor to work for him as a prostitute. See United States v. Sutcliffe, 505 F.3d 944, 953 (9th Cir.2007) (holding that the electronic submission of information across state lines qualifies as “in or affecting interstate commerce” (internal quotation marks and brackets omitted)). Finally, he provided the minor with Durex condoms, which are manufactured abroad and imported into the United States through ports in Los Angeles and Charleston, South Carolina.
2. We review the district court’s formulation of jury instructions for an abuse of discretion, considering “‘the instructions as a whole, and in context.’ ” United States v. Franklin, 321 F.3d 1231, 1240-41 (9th Cir.2003) (quoting United States v. Stapleton, 293 F.3d 1111, 1114 (9th Cir.2002)). We review de novo whether a jury instruction correctly states the law. Dang v. Cross, 422 F.3d 800, 804 (9th Cir.2005). Whether an instruction violates due process by creating an unconstitutional presumption or inference likewise is subject to de novo review. United States v. Warren, 25 F.3d 890, 897 (9th Cir.1994).
The district court correctly formulated the jury instruction at issue. The district court properly directed the jury to decide whether Defendant’s actions had a minimal effect on interstate commerce. Further, the district court’s definitions of “in interstate commerce” and “affects interstate commerce” properly stated the law. The jury instruction also did not create an unconstitutional presumption or inference because it did not instruct the jury that any element had been satisfied, nor did it unduly focus on a single fact in a manner that created a danger of ignoring other evidence.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
We have reviewed the record and petitioners’ filings in this court. We conclude that petitioners have failed to raise a colorable constitutional or legal claim to invoke our jurisdiction over this petition for review under the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D). See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005), as adopted by, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir.2006) (en banc). Accordingly, we dismiss this petition for review because we lack jurisdiction to review the agency’s discretionary determination that petitioners did not demonstrate their removal would result in exceptional and extremely unusual hardship to a qualifying relative. See 8 U.S.C. § 1252(a)(2)(B)®; MartinezRosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005); Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003).
The fact that petitioners dispute the Immigration Judge’s findings of fact makes no difference. “[W]e have held that the ‘exceptional and extremely unusual hardship’ standard is subjective, and thus that it does implicate the ‘value judgment of the person or entity examining the issue,’ Romero-Torres, 327 F.3d at 890-91, [and therefore] we must conclude that we lack *226jurisdiction to review an IJ’s application of such standard to the facts of a case, be they disputed or otherwise.” Mendez-Castro v. Mukasey, 552 F.3d 975, 981 (9th Cir.2009) (underlining emphasis added).
Finally, petitioners argue the Immigration Judge was biased against them and violated their rights (1) to due process; (2) “to raise their children with a desired appreciation for their cultural and ethnic heritage, without governmental interference”; (3) to freedom of association; and (4) to freedom of religion — -all because the Immigration Judge noted petitioners attended a Catholic church mass in Spanish and should not have trouble finding such a service in Mexico. We do not have jurisdiction to consider these arguments because petitioners did not exhaust their administrative remedies by raising this claim in their brief before the Board of Immigration Appeals. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (holding that although the Board of Immigration Appeals cannot review constitutional challenges, it can review an error in the processing of a case, even if the error is a violation of due process, because it can order the Immigration Judge to correct the error).
Further, our review of the record discloses that the Immigration Judge did not in any way punish petitioners for their choices, nor limit their freedom to raise their children or practice their religion. Thus, petitioners have no colorable claim of bias or of a violation of any of these rights. See Fernandez v. Mukasey, 520 F.3d 965, 966-67 (9th Cir.2008) (holding petitioners’ claim that the standards for cancellation of removal violated their right to freedom of religion was not valid because they failed to show the statute required them to modify them behavior or beliefs).
All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) and the tolling of the voluntary departure period shall continue in effect until issuance of the mandate. Garcia v. Ashcroft, 368 F.3d 1157, 1159 (9th Cir.2004) (order); Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004).
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM:
Don Warner Reinhard, proceeding pro se, appeals the district court’s order entering judgment against him in this civil enforcement action brought by the Securities and Exchange Commission (the “SEC”) alleging securities fraud under the Securities Act of 1933, the Securities and Exchange Act of 1934, and the Investment Advisers Act of 1940. On appeal, Rein-hard argues that the district court (a) abused its discretion by denying his request for additional time to respond to the SEC’s complaint; (b) erred in failing to hear testimony from the process server before finding that Reinhard was properly served; and (c) erred in finding that he waived any objection to improper service of process. After review, we affirm.
I. BACKGROUND
On December 13, 2007, the SEC commenced a civil enforcement action against Appellant Reinhard in the United States District Court for the Northern District of Florida. The SEC’s complaint alleged that Reinhard controlled an investment firm and a hedge fund, and made false and misleading statements and omissions of material fact to his clients in the offer and sale of collateralized mortgage obligations.
On February 13, 2008, a process server delivered a summons and complaint to Reinhard’s home. The process server’s return of service states as the method of service: “Drop serve after Mr. Reinhard answered door and slammed door.” Rein-hard avers that he found the papers on his porch on February 19, 2008, but does not deny that he answered and then slammed the door.
*311According to the SEC, on March 4, 2008, Reinhard’s counsel, William C. Owen, spoke with the SEC’s counsel regarding the effectiveness of the February 13 service of process. Reinhard’s counsel agreed to accept service on Reinhard’s behalf in exchange for the SEC’s agreeing to a 20-day extension for Reinhard’s answer to the enforcement complaint (ie., until March 24, 2008). Reinhard’s counsel then sent a letter to the SEC’s counsel confirming the conversation and enclosing a copy of Reinhard’s affidavit which counsel had intended to file in support of a potential motion to quash service of process. On the same day, the SEC’s counsel sent a letter to Reinhard’s counsel memorializing the parties’ agreement.
On March 20, 2008, Reinhard’s counsel informed the SEC’s counsel that he would no longer be representing Reinhard. The SEC then agreed to grant Reinhard an additional four days beyond the original extension date (ie., until March 28, 2008) to file his answer.
On March 26, 2008, Reinhard pro se filed a motion for an additional extension of time, arguing that he had not been served with a summons but had contacted an attorney to represent him. Reinhard’s motion stated that he understood his attorney had negotiated with the SEC regarding the effectiveness of service of process. On April 11, 2008, the district court granted Reinhard’s pro se motion and ordered him to answer no later than April 18, 2008.
On April 18, 2008, Reinhard sent a letter to the district court stating that he did not receive the court’s order until April 17, thus allowing him only “1 day to react and respond.” Also in the letter, Reinhard made a request for an additional sixty days to answer the complaint. The district court denied this request.
On June 9, 2008, the SEC moved for entry of a default against Reinhard for failure to answer. The clerk entered a default against Reinhard on June 12, 2008.
On June 24, 2008, Reinhard filed an “objection and response” to the SEC’s motion for default, asserting that his former attorney had filed a motion to withdraw and that Reinhard was “under the impression this motion [to withdraw] had to [sic] taken up before anything else could be done.” Reinhard also argued that the action should be dismissed on the ground that an automatic stay was triggered upon his filing for bankruptcy. On July 1, 2008, the SEC filed a response opposing Rein-hard’s request that the default be set aside. On July 8, 2008, the SEC moved for entry of a final default judgment against Reinhard.
On July 14, 2008, the district court, construing Reinhard’s “objection and response” filing as a motion to vacate the default, denied the motion, observing that no attorney ever appeared in this action for Reinhard and that there was no motion pending for leave to withdraw as counsel. The district court also ruled that Rein-hard’s bankruptcy petition did not bar this action, reasoning that, pursuant to 11 U.S.C. § 362(b)(4), the Bankruptcy Code’s automatic stay does not apply to enforcement actions brought by the government. The district court granted the SEC’s motion for a default judgment.
On July 22, 2008, Reinhard moved for “reconsideration and clarification” of the court’s order declining to set aside the default. Reinhard’s reconsideration motion stated that he believed he would not be able to secure legal counsel, but that his defenses to the enforcement action were meritorious. Reinhard requested that the court set aside the default judgment and allow him to proceed pro se. Reinhard’s motion further argued that the automatic stay in his bankruptcy case barred the *312SEC’s request for disgorgement.1 The district court denied Reinhard’s motion for reconsideration and clarification.
On October 3, 2008, the district court ordered Reinhard to pay for disgorgement of ill-gotten gains, plus prejudgment interest, and a civil money penalty; enjoined him from violating various provisions of the securities laws; and set a date of December 8, 2008 for a bench trial to determine the amounts of the disgorgement and civil penalty.
On October 16, 2008, Reinhard moved to quash or strike the service of process, arguing that the summons was not personally delivered to his residence.
At the December 8, 2008 bench trial, Reinhard agreed to have the service of process issue “resolved based on the written papers already submitted.” The district court ultimately denied Reinhard’s motion to quash the service of process on the ground that Reinhard waived any objection to service of process by failing to raise the issue earlier. Alternatively, the district court found that the service on Reinhard was sufficient, crediting the process server’s statement that, when he attempted to serve Reinhard at his home, Reinhard answered the door but then slammed it.
Also at the December 8, 2008 bench trial, the district court found that Rein-hard had received the amount of $5,857,241.09 as a result of the fraud alleged in the enforcement complaint and ordered him to disgorge that amount, together with prejudgment interest of $2,258,940.58. The district court also imposed on Reinhard a civil penalty of $120,000.
II. DISCUSSION
A. Extension of Time
Reinhard first argues that the district court erred in granting him only a seven-day extension of time, until April 18, 2008, because this gave him insufficient time to respond to the enforcement complaint.2
Reinhard’s argument lacks merit because Reinhard was actually given over two months to answer the complaint. Service of process was effected on February 13, 2008, and thus Reinhard was required to serve his answer no later than March 4, 2008. See Fed.R.Civ.P. 12(a)(l)(A)(i) (a defendant must serve an answer within 20 days after being served with a summons and complaint). After discussions with Reinhard’s counsel, the SEC’s counsel informally agreed to extend that deadline to March 24. Reinhard’s counsel then withdrew, at which time the SEC’s counsel agreed to an additional four-day extension, until March 28. On March 31, Reinhard filed a pro se motion for an extension of time. The district court granted that motion on April 11, and gave Reinhard an additional seven days, until April 18, to file a responsive pleading. Thus, Reinhard had more than two months from the time he was first put on notice of the complaint, February 13, 2008, to the time his answer was due, April 18, 2008.3
*313We recognize that Reinhard relies on Sicker v. Commissioner, 815 F.2d 1400 (11th Cir.1987), but that case is materially different. In Sicker, the Tax Court refused to consider a taxpayer’s petition for redetermination of a tax deficiency because the petition was not timely filed. Id. at 1401. The Internal Revenue Code requires that a petition for redetermination must be filed within 90 days of the date when the notice of deficiency is mailed. Id. Because the IRS incorrectly addressed Sicker’s notice of deficiency, he did not receive it until eight days before the deadline. Id. In these circumstances, the Sicker Court concluded that, “[a]s a matter of law, eight days cannot be considered ample time in which to prepare a petition for redetermination.” Id. Unlike the taxpayer in Sicker who had only eight days, Reinhard had more than two months to answer the enforcement complaint. Moreover, Sicker is a case construing a particular statutory provision (not at issue here) as to the deadline for filing a tax deficiency redetermination petition, not a case about an extension of time to respond to a complaint. Thus, Sicker does not help Reinhard at all.
For all of these reasons, the district court did not abuse its discretion by granting an additional extension of only seven days in its April 11 order.4
B. Service of Process
Reinhard next asserts that the district court erred in determining that service was valid without hearing testimony from the process server.5 This argument also lacks merit. For starters, Reinhard expressly consented to having the service of process issue resolved “based on the written papers already submitted.” In addition, Reinhard relies on Cavic v. Grand Bahama Dev. Co., 701 F.2d 879 (11th Cir.1983), but that decision is not on point. Although there was an evidentiary hearing in Cavic, nothing in that decision states that the district court is required to hold an evidentiary hearing.6
Moreover, we agree with the district court that service of process on Rein-hard was properly effectuated.7 Under Federal Rule of Civil Procedure 4(e)(1), service of process may be effected by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Where, as here, the person to be served answers the door and then retreats into his residence, only to find the service papers at his door at a later date, process is deemed sufficient under Florida law. Pa*314lomara v. World Class Yachts, Inc., 824 So.2d 194, 194-95 (Fla.Dist.Ct.App.2002) (upholding a default judgment when the server attempted to serve appellant outside his place of business, appellant ran inside and would not come out, appellant was informed of the contents of the notice, the notice was placed on the door through which appellant later came out, and appellant later retrieved the papers); Liberman v. Commercial Nat’l Bank of Broward County, 256 So.2d 63, 63-64 (Fla.Dist.Ct.App.1971) (upholding a finding that service was proper where the person to be served “sought to avoid service of process by the expedient of running into his house and closing the door upon seeing the process server approach,” and the process server left the process papers in the person’s mailbox and stayed to watch him bring them into his house); Olin Corp. v. Haney, 245 So.2d 669, 670-71 (Fla.Dist.Ct.App.1971) (concluding that where “the person to be served flees from the presence of the process server in a deliberate attempt to avoid service of process, [the Florida service of process statute] may be satisfied if the process server leaves the papers at a place from which such person can easily retrieve them and takes reasonable steps to call such delivery to the attention of the person to be served”). As a consequence, the district court did not err in finding that Reinhard was properly served.8
Accordingly, we affirm the district court’s judgment in favor of the SEC and against Reinhard.
AFFIRMED.
. Because Reinhard does not raise any bankruptcy stay issues on appeal, these issues are waived. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (stating that an issue not raised on appeal is waived).
. We review the district court's decision whether to extend, pursuant to Fed.R.Civ.P. 6(b), the time required to complete an act for an abuse of discretion. Woods v. Allied Concord Fin. Corp., 373 F.2d 733, 734 (5th Cir.1967).
.Even assuming that Reinhard did not have actual notice of the complaint until February 19, 2008, the date that Reinhard alleges he first found the summons and complaint on his *313porch, he was still afforded just under two months to file his answer.
. Reinhard's various other arguments, such as comparing the time to answer a complaint to rules governing the amount of notice required prior to a deposition or hearing, do not concern the time required to file an answer to a complaint and are also inapposite.
. We review the district court's decision to rule on a motion without an evidentiary hearing for abuse of discretion. Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1250 (11th Cir.2005).
. In fact, the district court is not obligated to hold a hearing in resolving jurisdictional issues, but may resolve these issues on affidavits alone. See Washington v. Norton Mfg., Inc., 588 F.2d 441, 443 (5th Cir.1979) (“[Tlhe judge may determine these [jurisdictional] issues by receiving affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.”).
.In considering a district court's decision concerning the sufficiency of service of process, we review the district court's legal conclusions de novo and its factual findings for clear error. Prewitt Enters., Inc. v. OPEC, 353 F.3d 916, 920 (11th Cir.2003).
. Because we conclude that Reinhard was properly served, we need not address the district court’s alternative determination that Reinhard waived his right to challenge service of process under Rule 12(b).
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves for an extension of time and moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss this appeal as premature. Dominic Sabbia opposes both motions.
On November 21, 2008, Sabbia filed a notice of appeal seeking review of the United States Court of Appeals for Veterans Claims’ November 12, 2008 order. The docket sheet of the Court of Appeals for Veterans Claims indicates that the November 12 order is a notice of docketing and that proceedings are ongoing in the Court of Appeals for Veterans Claims.
Sabbia contends that the Court of Appeals for Veterans Claims has made a constructive final decision and requests that the court award benefits to him, his mother, and his children immediately. However, Sabbia does not explain how the Court of Appeals for Veterans Claims made a “constructive final decision.” The court notes that Sabbia filed his notice of appeal seeking review by this court only fifteen days after his notice of appeal seeking review by the Court of Appeals for Veterans Claim was filed.
This court’s jurisdiction is generally limited to reviewing final decisions of the Court of Appeals for Veterans Claims. See 38 U.S.C. § 7292. In this case, the Court of Appeals for Veterans Claims has not issued a final decision. Thus, the appeal is dismissed.
Accordingly,
IT IS ORDERED THAT:
*420(1) The Secretary’s motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
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ORDER
Upon consideration of the petitioner’s unopposed motion to voluntarily dismiss his petition for review,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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ORDER
Upon consideration of the appellant’s unopposed motion to voluntarily dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves for an extension of time and moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss this appeal as premature. Dominic Sabbia opposes both motions.
On November 21, 2008, Sabbia filed a notice of appeal seeking review of the United States Court of Appeals for Veterans Claims’ November 12, 2008 order. The docket sheet of the Court of Appeals for Veterans Claims indicates that the November 12 order is a notice of docketing and that proceedings are ongoing in the Court of Appeals for Veterans Claims.
Sabbia contends that the Court of Appeals for Veterans Claims has made a constructive final decision and requests that the court award benefits to him, his mother, and his children immediately. However, Sabbia does not explain how the Court of Appeals for Veterans Claims made a “constructive final decision.” The court notes that Sabbia filed his notice of appeal seeking review by this court only fifteen days after his notice of appeal seeking review by the Court of Appeals for Veterans Claim was filed.
This court’s jurisdiction is generally limited to reviewing final decisions of the Court of Appeals for Veterans Claims. See 38 U.S.C. § 7292. In this case, the Court of Appeals for Veterans Claims has not issued a final decision. Thus, the appeal is dismissed.
Accordingly,
IT IS ORDERED THAT:
*420(1) The Secretary’s motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
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ORDER
Upon consideration of the petitioner’s unopposed motion to voluntarily dismiss his petition for review,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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ORDER
Upon consideration of the appellant’s unopposed motion to voluntarily dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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ORDER
The United States moves to voluntarily dismiss its appeal due to settlement.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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ORDER
PER CURIAM.
Nelson T. Brookins appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals’ (“Board”) decision to deny service connection for Mr. Brookins’s schizophrenia.
Mr. Brookins served in the Navy from 1989 to 1993. His service medical records and his evaluation at discharge from the Navy did not indicate any psychiatric disorder. During service he was arrested for, inter aha, driving while intoxicated and disorderly conduct. During a 1997 admission to a Veterans’ Administration hospital, schizophrenia was ruled out.
It was not until 1998 that, after he began reporting auditory and visual hallucinations, Mr. Brookins was diagnosed with schizophrenia. He also stated in 2004 that he believed his problem began in the service and that he heard voices within a year and a half of leaving the service.
In a 2006 decision, the Board of Veterans’ Appeals determined that Mr. Brookins’s schizophrenia was not service-related. The Veterans Court affirmed.
Mr. Brookins appealed to this court. The Secretary of Veterans Affairs moved to dismiss for lack of jurisdiction. Mr. Brookins opposed and requested time to obtain counsel. We denied the Secretary’s motion without prejudice and allowed Mr. Brookins time to obtain counsel. Mr. Brookins, however, did not obtain counsel for this appeal. In the briefing on the merits, the Secretary renewed his argument that we lack jurisdiction over Mr. Brookins’s appeal.
Under 38 U.S.C. § 7292, this court has extremely limited authority to review decisions of the Veterans Court. This court decides “all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). However, unless the appeal presents a constitutional issue, we may not review challenges to factual determinations or “to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
In his informal appeal brief, Mr. Brookins states, “I would like for the court to award me 100% disability service connected.” This is, in fact, the only sentence Mr. Brookins wrote in his informal brief. Mr. Brookins also checked boxes indicating the Veterans Court decision he is appealing did not “involve the validity or interpretation of a statute or regulation” and did not involve “constitutional issues.” Mr. Brookins also checked a box indicating that the Veterans Court did not “fail to decide any other issue correctly.”
Because Mr. Brookins indicates he does not challenge any of the aspects of the Veterans Court’s decision over which we would have jurisdiction, the Secretary is correct that we cannot exercise jurisdiction over his appeal.
Accordingly,
IT IS ORDERED THAT:
*424(1) The appeal is dismissed.
(2) Each side shall bear its own costs.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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SUMMARY ORDER
The 60-day voluntary departure period, which began to run on September 3, 2008, will be stayed from the October 1, 2008 filing date of Jaramillo’s motion for a stay of voluntary departure until the date that this court’s mandate issues. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Yong Qun Dong, a citizen of the People’s Republic of China, seeks review of the BIA’S January 2, 2009 order affirming the January 30, 2007 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yong Qun Dong, No. A098 255 768 (B.I.A. Jan. 2, 2009), aff'g No. A098 255 768 (Immig. Ct. N.Y. City Jan. 30, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this ease.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review the IJ’s decision as a whole. See Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). In doing so, we review factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). For asylum applications governed by the REAL ID Act, the agency may base a credibility finding on an asylum applicant’s “demean- or, candor, or responsiveness,” the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” See 8 U.S.C. § 1158(b)(l)(B)(iii); Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
We conclude that the agency’s adverse credibility determination was supported by substantial evidence. It was not error for the IJ to rely on the record of Dong’s airport interview in making his adverse credibility determination. During Dong’s airport interview, Dong first claimed that he feared persecution because he practiced Falun Gong, but he later admitted that he had lied and was not a Falun Gong practitioner. In finding the record of the airport interview sufficiently reliable, the agency properly applied the framework set forth in Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004). Dong contends that the airport interview was unreliable because he was “forced” by the interviewing officer to admit his involvement with a smuggler who was also on Dong’s flight from China, and that this pressure caused him to feel that he needed to lie about his practice of Falun Gong. He also claims that, because he was unsure how the U.S. government viewed Falun Gong, *592he was reluctant to disclose his involvement. The IJ found these explanations “fundamentally incoherent,” and we find no error in that conclusion. See Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.2007); Guan v. Gonzales, 432 F.3d 391, 396, 397 n. 6, 399 n. 8 (2d Cir.2005).
Given the IJ’s finding that the record of Dong’s airport interview was reliable, it was reasonable for the agency to note the inconsistency between Dong’s admission that he was not a Falun Gong practitioner, and his later testimony regarding his knowledge and practice of Falun Gong. 8 U.S.C. § 1158(b)(l)(B)(iii). This inconsistency was an ample basis for the agency’s adverse credibility determination. See id.
Because the only evidence of a threat to Dong’s life or freedom relied upon his credibility, the adverse credibility determination in this case necessarily precludes success on Dong’s claims for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.1991). Dong does not challenge the agency’s denial of his request for CAT relief.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8474614/
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SUMMARY ORDER
Plaintiff-appellant New Falls Corporation appeals a September 30, 2008 final judgment of the District Court (Stefan R. Underhill, Judge) entered after the District Court granted summary judgment to defendant-appellee Edward N. Lerner. New Falls Corp. v. Lerner, 579 F.Supp.2d 282 (D.Conn.2008). We assume the parties’ familiarity with the facts and procedural history of this action and set forth only so much of that history as is necessary to explain our decision here.
New Falls brought this diversity action alleging that Lerner committed legal malpractice by failing to perfect an attachment of real estate. Lerner committed the alleged malpractice while representing another entity, Stornawaye Capital, LLC, in an action to enforce a loan. Id. at 283-84. Stornawaye assigned its rights in the loan enforcement action to New Falls, and New Falls subsequently brought this claim for legal malpractice as Stornawaye’s successor. Id.
The District Court granted Lerner’s motion for summary judgment on the ground that New Falls was not the real party in interest to the malpractice claim. Id. at 283. The District Court held that the assignment between Stornawaye and New Falls was governed by California law because the assignment contract explicitly provided that it “shall be construed, and the rights and obligations of the Seller and Buyer ... determined, in accordance with the law of the State of California.” Id. at 286. Noting California’s “well-established prohibition on the assignability of legal malpractice claims,” the District Court concluded that Stornawaye’s assignment of its rights in the loan enforcement action could not, under California law, have included an assignment of potential legal malpractice claims. Id. at 283.
On appeal, New Falls claims that the District Court erred in applying California law to the issue of whether the malpractice claim was assignable. New Falls maintains that Connecticut law — which, according to New Falls, permits assignment of malpractice claims — should have applied because Connecticut was the state in which the alleged malpractice took place.
Reviewing the District Court’s grant of summary judgment de novo, Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir.2009), we affirm the District Court’s clear and thoughtful order. Stornawaye and New Falls unequivocally agreed that California law “determined” their “rights and obligations” under the assignment contract. New Falls, 579 F.Supp.2d at 286. As a result, the “rights” that New Falls acquired in the assignment could not *598have included a right to bring malpractice claims, which is a right that cannot be assigned under California law. As the District Court aptly put it, “[b]ecause any attempt to assign a legal malpractice claim by a contract governed by California law is rendered void on the basis of California’s emphatic public policy prohibiting the assignment of legal malpractice claims, Stornawaye’s attempt to transfer its legal malpractice claim against Lerner to New Falls was ineffective as a matter of law.” Id. at 288. New Falls, therefore, may not assert Stornawaye’s rights in this malpractice action, and the District Court correctly granted summary judgment for Lerner.
We reject New Falls’ contention that the District Court erred in applying California law. The District Court, a federal court sitting in diversity, properly applied the choice-of-law rules of its forum state, Connecticut. Id. at 286; see Wall v. CSX Transp., Inc., 471 F.3d 410, 415 (2d Cir.2006). As the District Court correctly noted, Connecticut law provides that “[pjarties to a contract generally are allowed to select the law that will govern their contract.” New Falls, 579 F.Supp.2d at 286 (quoting Elgar v. Elgar, 238 Conn. 839, 679 A.2d 937, 943 (1996)); see also Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d Cir.2001). The only exceptions to that general rule arise when “(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue.” New Falls, 579 F.Supp.2d at 286 (quoting Elgar, 679 A.2d at 943). Neither of those exceptions applies here. First, Stornawaye is a California corporation, id. at 292-93, and thus we agree with the District Court that California has a substantial relationship to the parties, see Elgar, 679 A.2d at 944 (finding that New York had a substantial relationship to the parties because “plaintiff was at all times a New York resident”). Second, we agree with the District Court that Connecticut has expressed no “fundamental policy,” Elgar, 679 A.2d at 943, that conflicts with the application of California law in this action, New Falls, 579 F.Supp.2d at 293 (noting that Connecticut adopts a mixed approach to the assignability of malpractice claims). In any event, we cannot say that Connecticut has a “materially greater interest” than California “in the determination of the particular issue,” Elgar, 679 A.2d at 943, because the loan that gave rise to the enforcement action — and the alleged malpractice — is also governed by California law, New Falls, 579 F.Supp.2d at 293.
Accordingly, the District Court correctly applied California law to the issue of whether Stornawaye’s malpractice claim was assignable; the District Court correctly determined that, under California law, Stornawaye could not have assigned any malpractice claims; and thus the District Court correctly granted summary judgment to Lerner on the ground that New Falls was attempting to enforce a right that it did not have.
We therefore AFFIRM the District Court’s September 30, 2008 judgment.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474415/
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ORDER
PER CURIAM.
Nelson T. Brookins appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals’ (“Board”) decision to deny service connection for Mr. Brookins’s schizophrenia.
Mr. Brookins served in the Navy from 1989 to 1993. His service medical records and his evaluation at discharge from the Navy did not indicate any psychiatric disorder. During service he was arrested for, inter aha, driving while intoxicated and disorderly conduct. During a 1997 admission to a Veterans’ Administration hospital, schizophrenia was ruled out.
It was not until 1998 that, after he began reporting auditory and visual hallucinations, Mr. Brookins was diagnosed with schizophrenia. He also stated in 2004 that he believed his problem began in the service and that he heard voices within a year and a half of leaving the service.
In a 2006 decision, the Board of Veterans’ Appeals determined that Mr. Brookins’s schizophrenia was not service-related. The Veterans Court affirmed.
Mr. Brookins appealed to this court. The Secretary of Veterans Affairs moved to dismiss for lack of jurisdiction. Mr. Brookins opposed and requested time to obtain counsel. We denied the Secretary’s motion without prejudice and allowed Mr. Brookins time to obtain counsel. Mr. Brookins, however, did not obtain counsel for this appeal. In the briefing on the merits, the Secretary renewed his argument that we lack jurisdiction over Mr. Brookins’s appeal.
Under 38 U.S.C. § 7292, this court has extremely limited authority to review decisions of the Veterans Court. This court decides “all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). However, unless the appeal presents a constitutional issue, we may not review challenges to factual determinations or “to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).
In his informal appeal brief, Mr. Brookins states, “I would like for the court to award me 100% disability service connected.” This is, in fact, the only sentence Mr. Brookins wrote in his informal brief. Mr. Brookins also checked boxes indicating the Veterans Court decision he is appealing did not “involve the validity or interpretation of a statute or regulation” and did not involve “constitutional issues.” Mr. Brookins also checked a box indicating that the Veterans Court did not “fail to decide any other issue correctly.”
Because Mr. Brookins indicates he does not challenge any of the aspects of the Veterans Court’s decision over which we would have jurisdiction, the Secretary is correct that we cannot exercise jurisdiction over his appeal.
Accordingly,
IT IS ORDERED THAT:
*424(1) The appeal is dismissed.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474417/
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474419/
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PER CURIAM.
ORDER
The United States moves to summarily affirm the United States Court of Federal Claims’ dismissal of Maria L. Pereira’s complaint for lack of jurisdiction.
Pereira filed a complaint in the Court of Federal Claims, alleging that the United States owed her $7.5 billion dollars in damages because she was escorted out of a Department of Justice building by security and due to her subsequent hospital admission. Pereira’s complaint was dismissed *425for lack of jurisdiction as sounding in tort. Pereira appealed.
We agree with the United States that summary affirmance is warranted. Summary affirmance of a case “is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994). The Court of Federal Claims correctly determined that Pereira did not identify a claim based upon a money-mandating statute, regulation, or constitutional provision and correctly determined that it does not have jurisdiction over tort claims.
Accordingly,
IT IS ORDERED THAT:
(1) The motion for summary affirmance is granted.
(2) All sides shall bear their own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474423/
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474427/
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
*427ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474430/
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ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474432/
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ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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