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https://www.courtlistener.com/api/rest/v3/opinions/8475155/
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SUMMARY ORDER
Defendants either pleaded guilty to, or where convicted of, various charges in connection with a conspiracy to distribute 1,000 kilograms or more of marijuana through a criminal syndicate called the “Two Mile Posse.” Specifically, the District Court entered the following final judgments:
*441Defendant Desmond Shaw pleaded guilty to, and was convicted of, one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and was sentenced principally to 168 months’ imprisonment in a judgment entered September 6, 2006.
Defendant Anthony Phillips pleaded guilty to, and was convicted of, one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and was sentenced principally to imprisonment for 120 months in a judgment entered February 1, 2007.
Defendant Sheldon Fuller was convicted after a jury trial of the following: (1) one count of racketeering in violation of 18 U.S.C. § 1962(c); (2) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (3) one count of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(1) and (2); (4) two counts of violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and (2); (5) two counts of murder in connection with a drug crime in violation of 21 U.S.C. § 848(e)(1)(A); (6) one count of use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); (7) one count of murder through use of a firearm in violation of 18 U.S.C. § 924(j); and (8) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered on November 6, 2006 defendant was sentenced principally to life imprisonment.
Defendant Conrad Cooper was convicted after a jury trial of the following: (1) one count of racketeering in violation of 18 U.S.C. § 1962(c); (2) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (3) one count of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(1) and (2); (4) two counts of violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and (2); (5) two counts of murder in connection with a drug crime in violation of 21 U.S.C. § 848(e)(1)(A); (6) one count of use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); (7) one count of murder through use of a firearm in violation of 18 U.S.C. § 924(j); and (8) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered on November 3, 2006 defendant was sentenced principally to life imprisonment.
Defendant Ryan King was convicted after a jury trial to one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) and one count of conspiracy to distribute and possession with intent to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered December 11, 2006, King was sentenced principally to 51 months’ imprisonment.
Defendant Enrico Thomas was convicted after a jury trial of the following: (1) one count of racketeering in violation of 18 U.S.C. § 1962(c); (2) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (3) one count of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(1) and (2); (4) two counts of violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and (2); (5) two counts of murder in connection with a drug crime in violation of 21 U.S.C. § 848(e)(1)(A); (6) one count of use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); (7) one count of murder through use of a firearm in violation of 18 U.S.C. § 924(j); and (8) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered on February 9, 2007 defendant was sentenced principally to life imprisonment.
Defendant Mark Brown was convicted after a jury trial of (1) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (2) one count of *442use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c); and (3) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered October 12, 2007, defendant was sentenced principally to 180 months’ imprisonment.
Defendant Bobby Weston was convicted after a jury trial of one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and was sentenced principally to 121 months’ imprisonment in a judgment entered December 15, 2006.
Defendant Stephen Mattis pleaded guilty to, and was convicted of, one count of racketeering in violation of 18 U.S.C. § 1962(c). In a judgment entered April 9, 2008, defendant was sentenced principally to 235 months’ imprisonment.
Defendants appeal various orders and judgments related to their guilty pleas, convictions, or sentences. Specifically, the issues on appeal are as follows:
(1) Whether the evidence was sufficient to support the jury’s guilty verdicts for defendants Conrad Cooper, Sheldon Fuller, Enrico Thomas, Ryan King, and Bobby Weston for various charges, including the following: murder in connection with a narcotics offense, RICO and RICO conspiracy, violent crimes in aid of racketeering, and conspiracy;
(2) Whether the District Court erred when it admitted out-of-court statements related to two murders at trial against Cooper, Fuller, and Thomas because the District Court found that the murders were in furtherance of an ongoing conspiracy;
(3) Whether the District Court erred in admitting Brown’s proffer statements;
(4) Whether the District Court properly denied Fuller’s motion to suppress property and statements of Fuller;
(5) Whether the District Court erred when it denied Weston’s motion for severance of trials;
(6) Whether the government’s addresses to the jury deprived Weston of a fair trial;
(7) Whether the District Court erred when it permitted certain leading questions regarding Weston at trial;
(8) Whether the government violated its duty to Weston, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, to disclose exculpatory information;
(9) Whether the District Court erred when it charged the jury regarding Pinkerton liability;
(10) Whether the District Court erred when it denied Weston’s motion for a new trial because there was no newly-discovered evidence sufficient to merit a new trial;
(11) Whether the District Court erred when it denied Cooper, Fuller, Thomas, and Weston an evidentiary hearing in connection with witness perjury;
(12) Whether Cooper’s life imprisonment sentence violates the Fifth or Eighth Amendments of the United States Constitution;
(13) Whether the District Court erred in sentencing King; and
(14) Whether the District Court erred in sentencing Phillips.
We address each issue in turn, and we assume the parties’ familiarity with the facts and procedural history of this case.
First, Cooper, Fuller, Thomas, King, and Weston argue that the evidence presented at trial was insufficient to support the jury’s guilty verdicts. Because “the task of choosing among competing, permissible inferences is for the [jury and] not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir. *4432001), we are required to review the evidence “in the light most favorable to the government,” United States v. Gaskin, 364 F.3d 438, 459 (2d Cir.2004) and “resolve all issues of credibility in favor of the jury’s verdict.” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002). See generally Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). At trial, the government introduced much evidence that could support the jury’s verdict. Although the defendants argue that the jury could have drawn opposing inferences that would not support the guilty verdict, there were sufficient permissible inferences that the jury could, and apparently did, draw to support the guilty verdicts. Applying the deferential standard set forth above, we conclude that there was sufficient evidence to support each guilty verdict challenged here and, accordingly, we affirm the judgments of the District Court in this regard.
Second, Cooper, Fuller, and Thomas argue that the District Court improperly admitted at trial certain out-of-court statements related to two murders. The District Court ruled that these statements were in furtherance of the ongoing operations of the Two Mile Posse conspiracy and were therefore admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence.1 We have previously held that “statements that provide reassurance, or seek to induce a eo[-]conspirator’s assistance, or serve to foster trust and cohesiveness, or inform each other as to the progress or status of the conspiracy,” are in furtherance of a conspiracy and therefore admissible. United States v. Maldonado-Rivera, 922 F.2d 934, 958-59 (2d Cir.1990); see In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93,139 (2d Cir.2008). We have no difficulty in concluding that statements during a discussion between members of the Two Mile Posse while discussing murders carried out by a different subset of the Two Mile Posse could “serve to foster trust and cohesiveness, or inform each other as to the progress or status of a conspiracy.” Maldonado-Rivera, 922 F.2d at 959. In any event, many of these statements would have been admissible as declarations against penal interest under Fed.R.Evid. 804(b)(3), rendering harmless any error by the District Court. See United States v. Desena, 260 F.3d 150, 158-59 (2d Cir.2001). Accordingly, the District Court did not err when it admitted these statements.
Third, Brown argues that the District Court improperly admitted Brown’s proffer statements. Although proffer statements are generally inadmissible against a defendant at trial, Fed.R.Evid. 410, defendants may waive their rights to those protections. See United States v. Barrow, 400 F.3d 109, 116 (2d Cir.2005). In this case, Brown’s proffer agreement stated that he waived his right under Rule 410 if his counsel presents testimony, arguments, or evidence which contradicts the proffer statements. Because defense counsel implied facts that contradicted Brown’s proffer statements, the District Court did not err in admitting the proffer statements. Even if statements by Brown’s counsel did not trigger a waiver, his substantial rights were not affected by the admission of the proffer statements because there was ample evidence to support Brown’s conviction, including the cooperating witness testimony of Mark Lee and Kevon Holt describing Brown’s exten*444sive involvement with the marijuana conspiracy.
Fourth, Fuller argues that the District Court erred when it denied motions to suppress evidence of certain property and statements after conducting a full evidentiary hearing. After the evidentiary hearing, the District Court rendered an oral order stating that the property — several thousand dollars and Fuller’s driver’s license — had not been “seized” because the encounter with two law enforcement officials and a dog trained to sniff narcotics had been consensual. To determine if an encounter was not consensual, and therefore subject to the strictures of the Fourth Amendment, we must consider whether, “in view of all the circumstances surrounding the [encounter], a reasonable person would have believed that [he or she] was not free to leave.” United States v. Glover, 957 F.2d 1004, 1008 (2d Cir.1992), see Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (adopting a rule that courts must consider all circumstances to determine if a reasonable person would feel free to leave). We review this mixed question of fact and law de novo, see e.g., United States v. Glover, 957 F.2d 1004, 1007 (2d Cir.1992) and conclude that the District Court did not err in denying defendant’s motion to suppress the evidence consisting of property that law enforcement officers obtained in their consensual encounter with Fuller.
Similarly, Fuller argues that the District Court improperly denied his motion to suppress statements he made while in custody in alleged violation of the rule of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny. A defendant may waive his rights under Miranda, see Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and the government must establish by a preponderance of the evidence that the defendant validly waived his rights. Id. at 168, 107 S.Ct. 515. In the instant case, the District Court found after an extensive hearing that Fuller had orally waived his Miranda rights. Because there is sufficient evidence on the record to support this finding, the District Court did not err in admitting statements the defendant made while in custody.
Fifth, Weston argues that the District Court erred when it denied his motion for severance. A decision whether to sever a defendant from a joint trial pursuant to Rule 14 of the Federal Rules of Criminal Procedure2 is “confided to the sound discretion of the trial court,” United States v. Feyrer, 333 F.3d 110, 114 (2d Cir.2003), and a district court’s exercise of that discretion is “virtually unreviewable” on appeal, United States v. Yousef, 327 F.3d 56, 150 (2d Cir.2003). To challenge the denial of a severance motion, defendant must show that he suffered a prejudice “so severe that his conviction constituted a miscarriage of justice.” United States v. Stewart, 433 F.3d 273, 314 (2d Cir.2006). In this case, Weston has not met this stringent requirement inasmuch as he has alleged various hardships common in every multi-defendant trial, such as differing levels of culpability or standards of proof. For these reasons, we conclude that the District Court did not err in denying Weston’s motion for severance.
Sixth, Weston argues that the government’s opening and closing statements denied his constitutional right to a fair trial and that the District Court erred when it *445failed to give curative instructions. To assert that a prosecutor’s remarks warrant reversal, the defendant must allege misconduct that is “so severe and significant as to result in the denial of [his] right to a fair trial,” United States v. Locascio, 6 F.3d 924, 945 (2d Cir.1993), and that the remarks caused “substantial prejudice,” United States v. LaMorte, 950 F.2d 80, 83 (2d Cir.1991). In this case, the prosecutor’s allegedly errant comments did not cause “substantial prejudice,” id., because there was overwhelming evidence that Weston was connected with Two Mile Pos-see and guilty of the crimes charged. For these reasons, we conclude that the District Court did not err and that defendant is not entitled to a new trial.
Seventh, Weston argues that the District Court “abused its discretion” in permitting certain leading questions. Federal Rule of Evidence 611(c) provides that “[Heading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” We have interpreted this as “words of suggestion, not command,” United States v. DeFiore, 720 F.2d 757, 764 (2d Cir.1983), and, as a result, we have shown an “almost total unwillingness to reverse for 611(c) infractions,” United States v. Ajmal, 67 F.3d 12, 16 (2d Cir.1995) (internal quotations omitted). In this case, the District Court did not “abuse its discretion” by allowing leading questions on direct examination in limited circumstances. Furthermore, had the District Court “abused its discretion,” this would have been harmless error as the evidence against Weston was overwhelming-
Eighth, Weston argues that the government withheld material that was required to be disclosed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Before trial, counsel for Weston and Fuller requested certain material they believed might be exculpatory. Defendants and the government then agreed to provide the requested material to the District Court for in camera review ex patíe. After reviewing the documents, the District Court found that nothing in the documents was Brady material, and thei’efore the govexmment was not required to give the matexdals to defendants. Upon considering the alleged Brady material irrespectively in the context of the entire record, see United States v. Payne, 63 F.3d 1200, 1210-11 (2d Cir.1995); see also United States v. Coppa, 267 F.3d 132, 140 (2d Cir.2001) (“[T]he scope of a defendant’s constitutional right ... is ultimately defined retrospectively.”), we conclude even if the government had withheld evidence suppoi’ting Weston’s argument that he had not participated in the Two Mile Posse, but instead participated in another conspiracy to distribute marijuana, this would not have been prejudicial, as four coopei’ating witnesses implicated Weston in the Two Mile Posse conspiracy. Because the gov-eimment’s alleged withholding of cei’tain materials was, at minimum, insufficient to create prejudice, we conclude that the District Coui’t did not err when it did not require the government to share certain materials with defendants.
Ninth, Fuller argues that the District Court ex*red when it instructed the jury that he could be convicted of two murders on the theory of liability set forth in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) (holding that one can be criminally liable for the i'easonably fox’eseeable acts of one’s cocon-spirators), because there was insufficient evidence that the murders wex-e convicted in the fux'therance of a conspii’acy. As explained above in discussing the first issue on appeal, there was sufficient evidence that these murdex's were in furtherance of a conspiracy, and therefoi'e a jury instruction regarding Pinkerton liability was appropriate. Accordingly, we con-*446elude that the District Court did not err in instructing the jury on Pinkerton liability.
Tenth, Weston argues that the District Court erred when it denied his motion for a new trial due to alleged misrepresentations by the government and because of newly-discovered evidence. The Federal Rules of Criminal Procedure allow courts to “vacate any judgment and grant a new trial if the interest of justice so requires,” Fed.R.Crim.P. 33(a), but “motions for a new trial are disfavored in this Circuit.” United States v. Gambino, 59 F.3d 353, 364 (2d Cir.1995). Accordingly, district courts should only grant motions for new trials if there is “a real concern that an innocent person may have been convicted.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992). We review this decision only for “abuse of discretion.” United States v. Torres, 128 F.3d 38, 48 (2d Cir.1997). The District Court’s findings that there was no prosecutorial misconduct and that the newly discovered evidence “would not likely have led to a different outcome at trial,” were not clearly erroneous. Accordingly, we conclude that the District Court did not err in denying defendant’s motion for a new trial.
Eleventh, Cooper, Fuller, Thomas, and Weston argue that the District Court erred in declining to hold an evidentiary hearing to explore the extent of the alleged misconduct of a government witnéss who, it was later discovered, committed perjury at trial and to require, if necessary, a new trial. Whether perjured testimony requires a new trial “depends on the materiality of the perjury to the jury’s verdict and the extent to which the prosecution was aware of the perjury.” United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991). Although the District Court declined to conduct an evidentiary hearing on this motion for new trial — a decision we review only for “abuse of discretion,” United States v. White, 972 F.2d 16, 22 (2d Cir.1992) — the District Court did thoroughly consider the materiality of the perjury to the verdict rendered by the jury and the extent of the prosecution’s asserted knowledge of the perjury. The District Court determined that the perjured testimony did not affect the outcome of the trial and that the prosecution had no knowledge that the witness intended to perjure himself. Because the record amply supports this ruling, we conclude that the District Court did not err in declining to conduct an evidentiary hearing or grant a new trial because of perjured testimony.
Twelfth, Cooper argues that his sentence of life imprisonment for murder in aid of racketeering violates the Fifth and Eighth Amendments. Specifically, Cooper argues that the mandatory minimum sentence of life imprisonment is unconstitutional under the Due Process Clause of the Fifth Amendment and that his sentence is so disproportionate to his crime that it violates the Eighth Amendment. Regarding the Fifth Amendment claim, the Supreme Court has squarely rejected the argument that mandatory minimum sentences violate due process and held that Congress may confine the courts’ discretion in sentencing with mandatory minimum sentences in statutes. Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). As long as the mandatory minimum is neither so harsh that it violates the Eighth Amendment nor based on arbitrary classifications that violate the Due Process Clause, the Court may impose any sentence authorized by statute. Id. at 465, 111 S.Ct. 1919. Alternatively, Cooper argues that mandatory minimum sentences violate 18 U.S.C. 3553(a).3 We recently *447rejected this argument. United States v. Samas, 561 F.3d 108, 110-11 (2d Cir.2009). Finally, Cooper argues that his sentence of life imprisonment violates the Eighth Amendment. To violate the Eighth Amendment, the sentence must be “grossly disproportionate” to the crime. See, e.g., Lockyer v. Andrade, 538 U.S. 63, 72-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (requiring that defendant show that sentence is grossly disproportionate to the crime); Yousef, 327 F.3d at 163 (same). In this case, a sentence of life imprisonment is not grossly disproportionate to defendant’s crime of participating in two murders in aid of racketeering along with numerous other crimes. The sentence, though severe, fits the seriousness of the crimes. For the above reasons, we conclude that the District Court did not err in sentencing Cooper to life imprisonment.
Thirteenth, King argues that his sentence — principally, imprisonment of 51 months — is unreasonable. Because King completed his sentence of imprisonment on or about May 12, 2008, this sentencing challenge is moot. When a defendant has completed his term of imprisonment, a challenge to the length of the sentence is moot, particularly where, as here, the defendant faces deportation and, therefore, has “only a quixotic chance of legally returning to the United States to serve the remainder of his term of supervised release.” United States v. Williams, 475 F.3d 468, 479 n. 6 (2d Cir.2007) (internal quotation marks omitted). We conclude that King’s challenge is moot.
Fourteenth, and finally, Phillips argues that he was improperly sentenced because he did not receive the benefits of the “safety valve” provision at sentencing. In his plea agreement, however, Phillips expressly waived his right to appeal a sentence within or below the stipulated Guidelines range of 120 to 121 months’ imprisonment. Because this waiver was knowing and voluntary, and Phillips was sentenced to 120 months’ imprisonment, we conclude that, in such circumstances, he may not challenge his sentence.
CONCLUSION
We have considered all of defendants’ arguments and find them to be without merit. Therefore, in light of the foregoing, the judgments of the District Court are AFFIRMED with respect to defendants Campbell, Cooper, Thomas, Weston, Brown, and King. The appeals challenging the sentences of defendants King and Phillips are DISMISSED. The government’s motions for summary affirmance of judgments of conviction of defendants Shaw and Mattis are GRANTED; the Anders motions, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) of counsel for Shaw and Mattis are GRANTED; and, accordingly, the judgments of the District Court with respect to Shaw and Mattis are AFFIRMED.
. Rule 801(d)(2)(E) of the Federal Rules of Evidence states in relevant part:
A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
. Rule 14 states in relevant part: "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed.R.Crim.P. 14(a).
. Section 3553(a) states in relevant part: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of *447this subsection.” The section then goes on to list several factors that courts should consider when imposing sentences.
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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/8475158/
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SUMMARY ORDER
Plaintiff On Time Aviation, Inc. (“On Time”) appeals from awards of (1) summary judgment in favor of defendant Bombardier Capital, Inc. (“Bombardier”), and (2) sanctions against On Time’s counsel under Federal Rule of Civil Procedure 11. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
We review an award of summary judgment de uovo, viewing the evidence in the light most favorable to the non-moving party. Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir.2008). We will affirm a grant of summary judgment only where the record reveals “no genuine issue as to any material fact” and the movant’s entitlement to judgment “as a matter of law.” Fed.R.Civ.P. 56(c). We “apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).
1. The Contract Claim
a. Disclaimer
On Time argues that the district court erred in determining that an explicit disclaimer in the parties’ final purchase and sale agreement (the “Agreement”) stating that Bombardier was selling a particular aircraft “ ‘AS IS, WHERE IS’, with no representations or warranties of any kind or nature by [Bombardier], including but not limited to warranties of merchant*450ability and fitness for a particular purpose,” Callahan Affirmation, Exhibit C at 1, was unambiguous and clearly covered the aircraft engines. Whether a contract is ambiguous is a question of law for the court. See Aon Fin. Prods., Inc. v. Societe Generate, 476 F.3d 90, 95 (2d Cir.2007). Accordingly, we construe the contract de novo. See Jessica Howard Ltd. v. Norfolk S. R.R. Co., 316 F.3d 165, 168 (2d Cir.2003). Plaintiff relies on a Delivery and Acceptance Receipt (the “Delivery Receipt”) confirming acceptance of “the Equipment ‘AS IS, WHERE IS,’ ” Fish-man Affirmation, Exhibit 17 at 1 (emphasis added), to argue that the variance between the two disclaimer clauses — one referring to the “Equipment,” the other to the “Aircraft” — gives rise to ambiguity as to whether Bombardier disclaimed responsibility for necessary engine repairs to the aircraft. Like the district court, we are not persuaded by this argument.
While the Delivery Receipt does not define the term “Equipment,” it states that On Time’s execution and delivery of the document constituted “without further act, the unconditional and irrevocable acceptance by Purchaser of the Aircraft under the Agreement.” Id. Further, it explicitly defines the Aircraft to include two engines, providing their make, model, and serial numbers. The Agreement, moreover, references the Delivery Receipt, stating that the documents taken together “shall evidence the purchase by [On Time]” of the Aircraft. Read together, this language admits of no ambiguity: Bombardier’s sale of the aircraft “AS IS” disclaimed responsibility for any defects, including those pertaining to the engines. See United Illuminating Co. v. Wisvest-Conn., LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002) (stating that “words of the contract must be given their natural and ordinary meaning” and that court “will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity” (internal quotation marks omitted)); Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269, 901 A.2d 341 (2006) (noting that “polestar of construction is the intention of the parties to the contract as revealed by the language used, taken as an entirety” (internal quotation marks omitted)); O’Brien Bros.’ P’ship, LLP v. Plociennik, 182 Vt. 409, 414, 940 A.2d 692 (2007) (observing that unambiguous contract terms “will be given effect and enforced in accordance with their language” (internal quotation marks omitted)).1
b. Agreement To Assign and To Transfer the Service Plan
On Time argues that the district court nevertheless erred in failing to recognize that Bombardier’s refusal to pay for engine repairs raised a triable issue of fact as to its breach of the Agreement’s promise to assign and to transfer the service plan. We disagree. Bombardier’s service contract with Honeywell sets out various conditions for transfer of the plan, none of which allocates responsibility for the cost of engine repairs. Moreover, in the months following the sale of the Aircraft, *451Honeywell indicated that it was prepared to transfer the service plan once the damaged engines were repaired and the aircraft deemed airworthy. Plaintiffs service-plan arguments thus reduce to a claim that the assign-and-transfer clause itself constitutes an implied engine warranty obligating Bombardier to pay for engine repairs. As already explained, however, all such warranties were explicitly disclaimed by the “AS IS” provision of the sale contract. See U.C.C. § 2-316(3)(a) (“[U]nless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’... or other language that in common understanding calls the buyer’s attention to the exclusion of warranties [and] makes plain that there is no implied warranty.”).
Accordingly, judgment was properly entered in favor of Bombardier on plaintiffs contract claim.
2. The Fraud Claim
Plaintiffs fraud claim rests on two theories: (1) that Bombardier promised to assign and transfer the Honeywell service plan when it had no intention of doing so, and (2) that Bombardier fraudulently induced On Time to sign the sale contract with false representations that the engines were in good standing under the plan. The first theory merits little discussion, as it turns on Bombardier’s refusal to pay for engine repairs. As stated above, the Agreement’s disclaimer of warranties shifted any risk of engine damage to On Time, removing Bombardier’s payment for repairs as a condition of performance.
With respect to the fraudulent inducement claim, plaintiff argues that the district court erred in failing to apply New Jersey or Vermont law. We conclude that the claim does not survive under the law of either state. To establish fraudulent inducement, a plaintiff must prove that its reliance on the alleged misstatements was reasonable (New Jersey) or justifiable (Vermont). See Rowen Petroleum Props., LLC v. Hollywood Tanning Sys., Inc., No. 08-4764, 2009 WL 1085737, at *3 (D.N.J. Apr.20, 2009) (citing Banco Popular N. Am. v. Gandi, 184 N.J. 161, 173, 876 A.2d 253 (2005)); Von Turkovich v. APC Capital Partners, LLC, 259 F.Supp.2d 314, 321 (D.Vt.2003) (citing Sugarline Assocs. v. Alpen Assocs., 155 Vt. 437, 586 A.2d 1115 (1990)). As noted by the district court, the plaintiff did not plead justifiable or reasonable reliance in its complaint. Nor does it address the element on appeal. As a matter of law, no reasonable jury could find that On Time reasonably or justifiably relied on Bombardier’s alleged misrepresentations about engine quality in light of, record evidence that (1) the Agreement explicitly disclaimed all representations and warranties; (2) the Delivery Receipt referenced “unconditional and irrevocable” acceptance “without further act”; (3) On Time was aware of engine problems before signing the Agreement; and (4) On Time nevertheless failed to inspect the aircraft before buying it. Cf. Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007) (“A genuine issue exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s favor.” (internal quotation marks omitted)).
3. Sanctions
Plaintiff asserts that the district court erred in imposing Rule 11 sanctions against its attorney. Because the record reasonably supports the district court’s finding that the attorney’s own motion for sanctions against defendant’s counsel was unsupported by the record and objectively unreasonable, we identify no abuse of discretion. See Storey v. Cello, 347 F.3d 370, 393 (2d Cir.2003); Fed.R.Civ.P. 11, 1993 Advisory Comm. Notes (observing that fil*452ing of frivolous Rule 11 motion “is itself subject to the requirements of the rule and can lead to sanctions”).
Plaintiff argues that the district court nevertheless erred in using out-of-district rates to calculate the attorney’s fees awarded as a sanction. See generally Simmons v. New York City Transit Auth., 575 F.3d 170 (2d Cir.2009); Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d Cir.2008). The reasoning behind the calculation of awards under fee-shifting statutes such as the Americans with Disabilities Act, see 42 U.S.C. § 12205, and the Voting Rights Act, see 42 U.S.C. § 19731(e), is not, however, precisely analogous to that applicable to Rule 11 awards. The purpose of a Rule 11 award “is not compensation of the victimized party but rather the deterrence of baseless filings and the curbing of abuses.” Caisse Nationale de Credit Agricole-CNCA, N.Y. Branch v. Valcorp, Inc., 28 F.3d 259, 266 (2d Cir.1994); see also Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 369 F.3d 91, 98 (2d Cir.2004) (observing that Rule 11 “is not a fee-shifting mechanism” (internal quotation marks omitted)). Here, the district court explicitly referenced this deterrent purpose in setting the sanction amount. See On Time Aviation, Inc. v. Bombardier Capital, Inc., No. 04-cv-1765, order at 5 (D.Conn. Dec. 23, 2008) (awarding fees). Toward this object, the district court only considered the hours defense counsel spent answering plaintiff’s attorney’s own sanctions motion and used rates significantly lower than those actually charged by defendant’s attorneys. Id. at 4. We do not identify any abuse of discretion in the district court’s award in this case. See Caisse Nationale de Credit Agricole-CNCA, N.Y. Branch v. Valcorp, Inc., 28 F.3d at 266 (recognizing court discretion in determining reasonable fee under Rule 11).
We have considered all of plaintiffs remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
. We need not reach choice of law issues presented by the contract claims, as the result is the same under the laws of Connecticut, where On Time conducted the bulk of its negotiations through an agent; New Jersey, where On Time executed the agreement; and Vermont, headquarters of Bombardier, from which it negotiated and executed the transaction. All three states have adopted the Uniform Commercial Code, see Conn. Gen.Stat. § 42a-1-101 et seq.; N.J. Stat. Ann. § 12A:1-101 et seq.; Vt. Stat. Ann. tit. 9A, § 1-101 et seq., and none allows parol evidence to introduce ambiguity into otherwise clear contract terms. See United Illuminating Co. v. Wisvest-Conn., LLC, 259 Conn. at 670-75, 791 A.2d 546; Conway v. 287 Corporate Ctr. Assocs., 187 N.J. at 269, 901 A.2d 341; O’Brien Bros.’ P’ship, LLP v. Plociennik, 182 Vt. at 414, 940 A.2d 692.
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SUMMARY ORDER
Petitioner Scott L. Fenstermaker, a criminal defense lawyer, sued for declaratory and injunctive relief (1) on behalf of detainees held at the United States Naval Station at Guantanamo Bay, Cuba, alleging violations of their rights to counsel and speedy trial under the Fifth and Sixth Amendments, the Uniform Code of Military Justice, see 10 U.S.C. §§ 810, 838, and the Rules for Court Martial; and (2) on his own behalf, alleging violations of his First and Fifth Amendment rights. Fenster-maker now appeals the district court’s dismissal of his complaint for lack of standing and failure to state a claim, a ruling we review de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in Fenstermaker’s favor. See Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). “The party invoking federal jurisdiction bears the burden of establishing that jurisdiction exists.” Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.2009) (internal quotation marks and citations omitted). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Fenstermaker’s Standing To Sue on Behalf of Detainees a. Third-PaHy Standing
Fenstermaker submits that he has third-party, or jus tertii, standing to sue on behalf of detainees. To establish third-party standing, Fenstermaker must show that (1) he has suffered an injury in fact, (2) he has a “close relation” to the detainees whose rights he seeks to assert, and (3) detainees are hindered from protecting their own interests. See Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Because Fenstermaker must satisfy all three prongs of this test, our conclusion that he lacks the re*455quired “close relation” means that he cannot establish third-party standing in this case even were we to assume that he has suffered an injury in fact and that the detainees are hindered in protecting their own interests.
A close relation supporting third-party standing exists when “the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter.” Singleton v. Wulff, 428 U.S. 106, 115, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Eisenstadt v. Baird, 405 U.S. 438, 445, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (“[T]he relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so.”). Relying on Craig v. Boren, 429 U.S. 190, 192-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), and Eisenstadt v. Baird, 405 U.S. at 443-46, 92 S.Ct. 1029, Fenstermaker contends that he satisfies the “close relation” prong of third-party standing based on a “vendor-vendee relationship.” Appellant’s Br. at 16. We are not persuaded.
Fenstermaker alleged only that he might establish an attorney-client relationship with detainees in the future.1 Thus, Fenstermaker’s third-party standing is foreclosed by Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004), which declined to allow lawyers to premise third-party standing on relationships with hypothetical future clients, see id. at 131, 125 S.Ct. 564 (“The attorneys before us do not have a ‘close relationship’ with their alleged ‘clients’; indeed, they have no relationship at all.”). Even if we were to accept Fenstermaker’s assertion that this relationship is enough, Fenster-maker fails to demonstrate that his interests sufficiently align with those of the detainees. As a criminal defense lawyer and member of the pool of qualified civilian defense counsel, Fenstermaker’s interest is in defending detainees who are in fact brought to trial for war crimes. But detainees may well have an interest in avoiding prosecution or challenging their detention through other legal avenues. Accordingly, we conclude that Fenster-maker has not established the close relation required to assert third-party standing.
b. Nextr-Friend Standing
Fenstermaker also attempts to sue as next friend to the detainees. The Supreme Court has established at least two prerequisites for next-friend standing: “First, a ‘next friend’ must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action ... Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate.” Whitmore v. Arkansas, 495 U.S. 149, 163-64, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Our conclusion that *456Fenstermaker fails to establish that he is “truly dedicated to the best interests” of the detainees precludes his claim of next-friend standing.
Fenstermaker contends that he has shown “ample dedication to the Detainees and their cause” by initiating this action and by litigating detainee cases before both Article III courts and military commissions. Appellant’s Br. at 26-27. Without in any way impugning Fenstermakei'’s efforts, we conclude that they are insufficient to show dedication to the particularized interests of the detainees involved in this case. Cf. Does v. Bush, No. Civ. 05 313, 2006 WL 3096685, at *6 (D.D.C. Oct. 31, 2006) (noting that, without lawyer-client relationship, lawyer seeking to assert detainees’ rights as next friend could not know which legal channels they wished to pursue).
The parties also dispute whether the “next friend” must also have a “significant relationship” with the real party in interest. See Appellant’s Br. at 26-27. Even assuming, as Fenstermaker does, that a significant relationship is not a separate requirement for next-friend standing, we conclude that Fenstermaker’s admitted lack of any significant relationship with the detainees involved here bolsters our conclusion that he cannot satisfy the “truly dedicated” requirement for next-friend standing.
c. Standing-Based Discovery
Fenstermaker further submits that the district court abused its discretion in denying discovery that might have revealed facts supporting his claimed standing. We do not think the district court exceeded its “wide latitude to determine the scope of discovery” in denying Fenstermaker’s belated request. In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir.2008). Nevertheless, because Fenstermaker argues on appeal that this discovery would principally have revealed that detainees are hindered in litigating their own cases — a prong of the standing analysis we do not reach here — any discovery in this regard would not alter our conclusion that Fenstermaker lacks both third-party and next-friend standing.
2. Fenstermaker’s Individual First Amendment Claim
Fenstermaker also contends that the district court erred in dismissing his claim that defendants infringed his First Amendment right to disseminate information about his legal practice. We disagree. Although litigation is a form of political expression protected by the First Amendment, see NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and attorneys have a First Amendment right to advertise their legal practice, see Bates v. State Bar of Ariz., 433 U.S. 350, 383, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), defendants’ inability to deliver Fenstermaker’s statement of practice to unknown detainees not yet subject to military commission charges does not violate the First Amendment. Because Fenstermaker could have distributed — and ultimately did distribute — his statement of practice by sending it to another address published by the Defense Department, Fenstermaker’s challenge reduces to the notion that he has a right to communicate in a particular manner, i.e., by mail sent to a particular address and distributed by particular government officials.
If the requirement that Fenstermaker send correspondence to a particular address restrained his freedom of speech at all, it was therefore a “time, place, and manner restriction,” which survives First Amendment scrutiny so long as it is “not ... based on the content of the message, [is] narrowly tailored to serve a significant governmental interest, and ... leave[s] *457open ample alternatives for communication.” Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); accord Lusk v. Village of Cold Spring, 475 F.3d 480, 493 (2d Cir.2007). Fenstermaker argues that the Defense Department adopted a “policy of rejecting Fenstermaker’s correspondence,” which operates as “a thinly-disguised attempt to preclude Detainees from obtaining effective and qualified counsel.” Appellant’s Br. at 35. This hyperbolic assertion is belied by the record, which shows that Fenstermaker could send correspondence to detainees at an address made publicly available by the Defense Department.2 Any failure of the Office of Military Commissions to distribute Fenstermaker’s statement of practice to detainees not yet subject to its jurisdiction was therefore a content-neutral restriction that left open ample alternative channels of communication through the centralized address provided by the Defense Department. Accordingly, on this record, we conclude that Fenstermaker has failed to state a colorable First Amendment claim.
We have considered Fenstermaker’s other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. Fenstermaker asserts that, after filing his complaint, he established an attorney-client relationship with Mustafa Bin-Ahmad Al-Hawsawi. We decline to examine the documents Fenstermaker seeks to submit under seal to demonstrate this fact because there is no question that Fenstermaker did not represent any of the detainee parties when he filed his complaint, and "standing is to be determined as of the commencement of suit.” Un-jan v. Defenders of Wildlife, 504 U.S. 555, 571 n. 5, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); accord Comer v. Cisneros, 37 F.3d 775, 791 (2d Cir.1994). Fenstermaker also moves to expand the record on appeal to show, inter alia, that he has established attorney-client relationships with certain detainees after the conclusion of the district court proceedings. We hereby deny that motion for failure to comply with Fed. R.App. P. 10(e)(2)(C).
. We do not decide whether the government's alleged failure to deliver Fenstermaker's mail as privileged in the absence of an appropriate protective order alters the First Amendment analysis, as these events occurred after the district court proceedings and are not properly in the record on appeal.
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MEMORANDUM **
Jackie S. Bartakian appeals pro se from the district court’s judgment dismissing her action against Clark County and various managerial employees of Clark County (“Clark County defendants”) after she failed to amend her complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissal for failure to state a claim, Vestar Development II, LLC v. General Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), can affirm on any basis fairly supported by the record, id., and affirm.
Removal of this action to federal court was not improper because Bartakian raised constitutional claims. See 28 U.S.C. § 1441(a) (allowing removal of “any civil action brought in a State court of which the federal courts of the United States have original jurisdiction”); 28 U.S.C. § 1331 (conferring original jurisdiction on district court in “all civil actions arising under the Constitution, laws, or treaties of the United States”); Sparta Surgical Corp. v. National Ass’n of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir.1998) (“ [Jurisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments!!]”).
The district court did not err by dismissing Bartakian’s federal claims, and remanding the state law claim, because the complaint failed to allege facts sufficient to state a federal claim. See Foster v. Wilson, 504 F.3d 1046, 1050-52 (9th Cir.2007) (affirming dismissal of federal claims with prejudice where plaintiffs declined to amend complaint even though district court had dismissed with leave to amend because allegations were insufficient to state a claim); Williams v. Costco Wholesale Corp., 471 F.3d 975, 977 (9th Cir.2006) (“Dismissal of the federal claim ... ordinarily ... authorize^] the district court to remand the pendent state law claims.”).
Bartakian’s remaining contentions lack merit.
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 **
Tomas Lopez-Lopez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo claims of due process violations. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The BIA did not abuse its discretion in denying Lopez-Lopez’s motion to reopen because he failed to establish that the alleged ineffective assistance may have affected the outcome of his proceedings. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim a petitioner must demonstrate prejudice). It follows that the denial of Lopez-Lopez’s motion to reopen did not violate due pro*289cess. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
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 **
Jisuo Han, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s denial on the basis of an adverse credibility finding and will uphold the agency’s decision unless the evidence compels a contrary conclusion. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir.2004). We deny in part and grant in part the petition for review.
The agency denied Han’s asylum application claim as time barred. Han does not challenge this finding in his opening brief. Accordingly, we deny the petition as to Han’s asylum claim.
Substantial evidence does not support the agency’s denial of Han’s withholding of removal and CAT claims on the basis of an adverse credibility determination. See Kaur v. Ashcroft, 379 F.3d 876, 884-90 (9th Cir.2004). The IJ impermissibly engaged in speculation and conjecture regarding: (1) Han’s ability to exit China using a passport; (2) the hospital’s assistance of Han’s wife; (3) the Chinese government’s delay in fining the couple; and (4) the quality of Han’s treatment in a military hospital following his assault by a van. See id. at 886-87.
Furthermore, Han’s testimony that he was hit by a van is not inconsistent with the statement in his hospital discharge certificate that he was injured in a traffic accident. See Paramasamy v. Ashcroft, 295 F.3d 1047, 1052-54 (9th Cir.2002). The agency also erroneously relied on the asylum officer’s interview notes, which were not sufficiently reliable to impeach Han’s testimony. See Singh v. Gonzales, 403 F.3d 1081, 1087-90 (9th Cir.2005). Inconsistencies cited by the agency with his asylum application regarding how many months he stayed in the hospital following his coma, whether his wife still owes family planning officials part or all of the fine for violation of their policies, and when Han was told the amount of the fine, are minor and do not go to the heart of his claim. See id. at 1090-92. Finally, because none of the agency’s adverse credibility findings are supported, Han was not required to provide corroboration. See Kaur, 379 F.3d at 890.
We deny as moot Han’s motions to hold this petition for review in abeyance, to refer this petition for review to mediation, and to consolidate with petition for review No. 09-71157. Han’s motion to refer petition for review No. 09-71157 to mediation will be addressed by separate order.
We grant the petition for review with respect to the withholding of removal and CAT claims, and remand to the BIA on an open record. See Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009); see also INS v. Ventura, 537 U.S. 12, 16, 123 *291S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
ORDER
Respondent’s petition for panel rehearing is granted in part.
The memorandum disposition issued on June 30, 2009, is hereby withdrawn. A replacement disposition shall issue concurrently with this order.
No further petitions for rehearing will be entertained in this closed case.
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 AND JUDGMENT*
DEANELL REECE TACHA, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. RApp. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
*337Petitioners-appellants Arturo Nunez-Rodarte and his wife, Maria Guadalupe Nunez (“petitioners”) petition for judicial review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen their application for cancellation of removal under Immigration and Naturalization Act (“INA”) § 240A(b)(l), 8 U.S.C. § 1229b(b)(l). Respondent-appel-lee the United States (“respondent”) contends that under 8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to consider the BIA’s denial of petitioners’ motion to reopen. We agree with respondent and therefore DISMISS the petition for want of jurisdiction.
I. BACKGROUND
Petitioners are citizens of Mexico and have two children, aged sixteen and thirteen, who are both citizens of the United States. Mr. Nunez-Rodarte has lived in the United States unlawfully since 1986; his wife began living here sometime after July 1991. On July 2, 2001, the United States placed petitioners in removal proceedings. Thereafter, petitioners applied for cancellation of removal under § 1229b, which provides for discretionary cancellation of removal when an alien demonstrates that: (1) he has been physically and continuously present in the United States in the ten years preceding their application; (2) he has been a person of good moral character during such period; (3) he has not been convicted of certain criminal offenses; and (4) “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States.” INA § 240A(b)(l), 8 U.S.C. § 1229b(b)(l).
On October 15, 2007, the Immigration Law Judge (“ILJ”) found that petitioners had failed to establish the fourth requirement under the statute.1 Specifically, the ILJ found that the children would suffer by returning with petitioners to an unfamiliar culture in Mexico, but that this hardship would not be exceptional or extremely unusual. The ILJ noted that the children did not have any other family or support system in the United States and that the only hardship they would experience is a lack of educational and economic opportunities.
Petitioners appealed to the BIA. On July 25, 2008, the BIA dismissed the appeal, agreeing with the ILJ that petitioners had failed to meet their burden of proof to establish extreme and unusual hardship to their United States citizen children. On October 15, 2008, petitioners filed a motion to reopen the BIA’s July 25 decision in order to present new evidence supporting their claim of hardship. On January 5, 2009, the BIA denied the motion to reopen, stating that “[t]he new facts alleged regarding the ... children’s educational difficulties, together with the facts already of record, do not indicate a reasonable likelihood of success on the merits regarding the issue of exceptional and extremely unusual hardship so as to make it worthwhile to develop the issues at a hearing.”
Petitioners now seek judicial review to contest the BIA’s January 5 denial of their motion to reopen. They argue that the BIA: (1) ignored relevant precedent in determining whether they had satisfied the hardship requirement; and (2) failed to articulate the basis for its decision in anything other than “conelusory statements.”
II. DISCUSSION
As respondent makes clear, the threshold issue is whether we have juris*338diction to consider the BIA’s denial of petitioners’ motion to reopen. Section 1252(a)(2)(B) provides that “[njotwith-standing any other provision of law, ... no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b ... of this title.” 8 U.S.C. § 1252(a)(2)(B). This provision precludes jurisdiction to review the BIA’s denial of an application for cancellation of removal under § 240A of the INA, 8 U.S.C. § 1229b. See Alvarez-Delmuro v. Ashcroft, 360 F.3d 1254, 1256 (10th Cir.2004); Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.2003). This provision also applies to a denial of a motion to reopen that is based on a finding that petitioners’ new evidence did not support a finding of exceptional and extremely unusual hardship. See Alzainati v. Holder, 568 F.3d 844, 849 (10th Cir.2009) (“Because § 1252(a) (2) (B) (i) precludes our review of an ‘exceptional and extremely unusual hardship’ determination under § 1229b(b)(l)(D), it also precludes our jurisdiction to review the BIA’s denial of a motion to reopen because the alien still has failed to show the requisite hardship.”). Thus, to the extent petitioners challenge the BIA’s denial of their motion to reopen based on its determination that they had not shown that their removal would cause their United States children to suffer exceptional and extremely unusual hardship, we must dismiss the petition for lack of jurisdiction.
We do, however, have jurisdiction to consider constitutional claims or questions of law, INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D), but only insofar as such issues are “colorable.” Alvarez-Delmuro, 360 F.3d at 1256-57; Morales Ventura, 348 F.3d at 1262. Petitioners suggest that the BIA ignored applicable case law and failed to consider relevant facts, but we conclude these issues are not subject to review. To the extent these issues are couched in terms of due process, we have recognized the rule that “ ‘an alien has no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.’ ” United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir.2004) (quoting Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir.2002)). To the extent these issues are framed in terms of other legal questions, petitioners do not explain how the BIA ignored relevant legal authority or what facts it ignored. We thus conclude petitioners have not raised colorable constitutional or legal questions and must dismiss the petition for lack of jurisdiction on those grounds as well.
III. CONCLUSION
The petition is DISMISSED for lack of jurisdiction.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. The ILJ also found that Mr. Nunez-Ro-darte's wife had failed to demonstrate the first requirement, but this issue is not relevant to this appeal.
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PER CURIAM:
Randolph P. Murrell and Chet Kaufman, appointed counsel for Todd Dewayne Wilson, have filed a motion to withdraw on appeal and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsels’ motion to withdraw is GRANTED, and the district court’s denial of § 3582(c)(2) relief is AFFIRMED.
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PER CURIAM:
Thomas H. Dale, appointed counsel for Kirk Whittaker in this appeal from the district court’s denial of Whittaker’s motion to vacate his sentence for lack of jurisdiction, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the district court’s denial of Whittaker’s motion is AFFIRMED.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments by the parties. It is
Ordered and Adjudged that the judgment of the District Court be affirmed. Appellants in them suit for legal malpractice had the burden of proving their underlying claim would have succeeded but for the conduct of Appellees. See Niosi v. Aiello, 69 A.2d 57, 60 (D.C.1949). To that end, Appellants offered expert witness testimony to demonstrate causation between conditions at their former apartment and various health problems. See Young v. Burton, 567 F.Supp.2d 121, 122 (D.D.C.2008). The District Court thoroughly considered the reliability of that testimony under the framework established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The expert admitted he could not identify, five years later, the specific toxins to which Young and Ghee were exposed and he could not say which of their symptoms were caused by exposure to the damp environment of the apartment. See Young v. Burton, 567 F.Supp.2d 121, 138-39 (D.D.C.2008) (mem. op. granting motion to exclude testimony). As the District Court observed, even taking a “broad view of ‘substance’ to include ‘water-damaged building’ and [accepting] ‘mold-illness’ as a real disease” there is no generally accepted consensus in the scientific community that “exposure to a water-damaged building causes ‘mold-illness.’ ” Id. at 138. Clearly, the court did not abuse its discre*433tion by excluding testimony that, based on the expert’s own admissions, “would be nothing other than speculation.” Id. at 141.
The exclusion of Appellants’ expert’s testimony could not be cured by substituting selective portions of statements from Appellees’ medical expert. Those statements, in context, could not be “stretched to satisfy [Appellants’] burden of proof as to causation.” Young v. Burton, No. 07-0988, slip op. at 1, 2008 WL 4144478 (September 8, 2008) (mem. op. granting summary judgment). Nor could Appellants’ claims survive in the absence of expert testimony on causation, based only on a temporal link between a possible short-term irritant response and a breach of the implied warranty of habitability. Under District of Columbia law, the link between a potentially toxic building environment and symptoms experienced by tenants is “beyond the ken of laypersons.” Brin v. S.E. W. Investors, 902 A.2d 784, 793 (D.C.2006). Jurors would have no “rational basis for evaluating” whether the mold caused any medical conditions. See Lasley v. Georgetown Univ., 688 A.2d 1381, 1384 (D.C.1997). The District Court properly granted summary judgment for Appellees.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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SUMMARY ORDER
Defendants either pleaded guilty to, or where convicted of, various charges in connection with a conspiracy to distribute 1,000 kilograms or more of marijuana through a criminal syndicate called the “Two Mile Posse.” Specifically, the District Court entered the following final judgments:
*441Defendant Desmond Shaw pleaded guilty to, and was convicted of, one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and was sentenced principally to 168 months’ imprisonment in a judgment entered September 6, 2006.
Defendant Anthony Phillips pleaded guilty to, and was convicted of, one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and was sentenced principally to imprisonment for 120 months in a judgment entered February 1, 2007.
Defendant Sheldon Fuller was convicted after a jury trial of the following: (1) one count of racketeering in violation of 18 U.S.C. § 1962(c); (2) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (3) one count of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(1) and (2); (4) two counts of violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and (2); (5) two counts of murder in connection with a drug crime in violation of 21 U.S.C. § 848(e)(1)(A); (6) one count of use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); (7) one count of murder through use of a firearm in violation of 18 U.S.C. § 924(j); and (8) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered on November 6, 2006 defendant was sentenced principally to life imprisonment.
Defendant Conrad Cooper was convicted after a jury trial of the following: (1) one count of racketeering in violation of 18 U.S.C. § 1962(c); (2) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (3) one count of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(1) and (2); (4) two counts of violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and (2); (5) two counts of murder in connection with a drug crime in violation of 21 U.S.C. § 848(e)(1)(A); (6) one count of use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); (7) one count of murder through use of a firearm in violation of 18 U.S.C. § 924(j); and (8) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered on November 3, 2006 defendant was sentenced principally to life imprisonment.
Defendant Ryan King was convicted after a jury trial to one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) and one count of conspiracy to distribute and possession with intent to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered December 11, 2006, King was sentenced principally to 51 months’ imprisonment.
Defendant Enrico Thomas was convicted after a jury trial of the following: (1) one count of racketeering in violation of 18 U.S.C. § 1962(c); (2) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (3) one count of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(1) and (2); (4) two counts of violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and (2); (5) two counts of murder in connection with a drug crime in violation of 21 U.S.C. § 848(e)(1)(A); (6) one count of use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); (7) one count of murder through use of a firearm in violation of 18 U.S.C. § 924(j); and (8) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered on February 9, 2007 defendant was sentenced principally to life imprisonment.
Defendant Mark Brown was convicted after a jury trial of (1) one count of conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d); (2) one count of *442use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c); and (3) one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. In a judgment entered October 12, 2007, defendant was sentenced principally to 180 months’ imprisonment.
Defendant Bobby Weston was convicted after a jury trial of one count of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and was sentenced principally to 121 months’ imprisonment in a judgment entered December 15, 2006.
Defendant Stephen Mattis pleaded guilty to, and was convicted of, one count of racketeering in violation of 18 U.S.C. § 1962(c). In a judgment entered April 9, 2008, defendant was sentenced principally to 235 months’ imprisonment.
Defendants appeal various orders and judgments related to their guilty pleas, convictions, or sentences. Specifically, the issues on appeal are as follows:
(1) Whether the evidence was sufficient to support the jury’s guilty verdicts for defendants Conrad Cooper, Sheldon Fuller, Enrico Thomas, Ryan King, and Bobby Weston for various charges, including the following: murder in connection with a narcotics offense, RICO and RICO conspiracy, violent crimes in aid of racketeering, and conspiracy;
(2) Whether the District Court erred when it admitted out-of-court statements related to two murders at trial against Cooper, Fuller, and Thomas because the District Court found that the murders were in furtherance of an ongoing conspiracy;
(3) Whether the District Court erred in admitting Brown’s proffer statements;
(4) Whether the District Court properly denied Fuller’s motion to suppress property and statements of Fuller;
(5) Whether the District Court erred when it denied Weston’s motion for severance of trials;
(6) Whether the government’s addresses to the jury deprived Weston of a fair trial;
(7) Whether the District Court erred when it permitted certain leading questions regarding Weston at trial;
(8) Whether the government violated its duty to Weston, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, to disclose exculpatory information;
(9) Whether the District Court erred when it charged the jury regarding Pinkerton liability;
(10) Whether the District Court erred when it denied Weston’s motion for a new trial because there was no newly-discovered evidence sufficient to merit a new trial;
(11) Whether the District Court erred when it denied Cooper, Fuller, Thomas, and Weston an evidentiary hearing in connection with witness perjury;
(12) Whether Cooper’s life imprisonment sentence violates the Fifth or Eighth Amendments of the United States Constitution;
(13) Whether the District Court erred in sentencing King; and
(14) Whether the District Court erred in sentencing Phillips.
We address each issue in turn, and we assume the parties’ familiarity with the facts and procedural history of this case.
First, Cooper, Fuller, Thomas, King, and Weston argue that the evidence presented at trial was insufficient to support the jury’s guilty verdicts. Because “the task of choosing among competing, permissible inferences is for the [jury and] not for the reviewing court,” United States v. McDermott, 245 F.3d 133, 137 (2d Cir. *4432001), we are required to review the evidence “in the light most favorable to the government,” United States v. Gaskin, 364 F.3d 438, 459 (2d Cir.2004) and “resolve all issues of credibility in favor of the jury’s verdict.” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002). See generally Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). At trial, the government introduced much evidence that could support the jury’s verdict. Although the defendants argue that the jury could have drawn opposing inferences that would not support the guilty verdict, there were sufficient permissible inferences that the jury could, and apparently did, draw to support the guilty verdicts. Applying the deferential standard set forth above, we conclude that there was sufficient evidence to support each guilty verdict challenged here and, accordingly, we affirm the judgments of the District Court in this regard.
Second, Cooper, Fuller, and Thomas argue that the District Court improperly admitted at trial certain out-of-court statements related to two murders. The District Court ruled that these statements were in furtherance of the ongoing operations of the Two Mile Posse conspiracy and were therefore admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence.1 We have previously held that “statements that provide reassurance, or seek to induce a eo[-]conspirator’s assistance, or serve to foster trust and cohesiveness, or inform each other as to the progress or status of the conspiracy,” are in furtherance of a conspiracy and therefore admissible. United States v. Maldonado-Rivera, 922 F.2d 934, 958-59 (2d Cir.1990); see In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93,139 (2d Cir.2008). We have no difficulty in concluding that statements during a discussion between members of the Two Mile Posse while discussing murders carried out by a different subset of the Two Mile Posse could “serve to foster trust and cohesiveness, or inform each other as to the progress or status of a conspiracy.” Maldonado-Rivera, 922 F.2d at 959. In any event, many of these statements would have been admissible as declarations against penal interest under Fed.R.Evid. 804(b)(3), rendering harmless any error by the District Court. See United States v. Desena, 260 F.3d 150, 158-59 (2d Cir.2001). Accordingly, the District Court did not err when it admitted these statements.
Third, Brown argues that the District Court improperly admitted Brown’s proffer statements. Although proffer statements are generally inadmissible against a defendant at trial, Fed.R.Evid. 410, defendants may waive their rights to those protections. See United States v. Barrow, 400 F.3d 109, 116 (2d Cir.2005). In this case, Brown’s proffer agreement stated that he waived his right under Rule 410 if his counsel presents testimony, arguments, or evidence which contradicts the proffer statements. Because defense counsel implied facts that contradicted Brown’s proffer statements, the District Court did not err in admitting the proffer statements. Even if statements by Brown’s counsel did not trigger a waiver, his substantial rights were not affected by the admission of the proffer statements because there was ample evidence to support Brown’s conviction, including the cooperating witness testimony of Mark Lee and Kevon Holt describing Brown’s exten*444sive involvement with the marijuana conspiracy.
Fourth, Fuller argues that the District Court erred when it denied motions to suppress evidence of certain property and statements after conducting a full evidentiary hearing. After the evidentiary hearing, the District Court rendered an oral order stating that the property — several thousand dollars and Fuller’s driver’s license — had not been “seized” because the encounter with two law enforcement officials and a dog trained to sniff narcotics had been consensual. To determine if an encounter was not consensual, and therefore subject to the strictures of the Fourth Amendment, we must consider whether, “in view of all the circumstances surrounding the [encounter], a reasonable person would have believed that [he or she] was not free to leave.” United States v. Glover, 957 F.2d 1004, 1008 (2d Cir.1992), see Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (adopting a rule that courts must consider all circumstances to determine if a reasonable person would feel free to leave). We review this mixed question of fact and law de novo, see e.g., United States v. Glover, 957 F.2d 1004, 1007 (2d Cir.1992) and conclude that the District Court did not err in denying defendant’s motion to suppress the evidence consisting of property that law enforcement officers obtained in their consensual encounter with Fuller.
Similarly, Fuller argues that the District Court improperly denied his motion to suppress statements he made while in custody in alleged violation of the rule of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny. A defendant may waive his rights under Miranda, see Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and the government must establish by a preponderance of the evidence that the defendant validly waived his rights. Id. at 168, 107 S.Ct. 515. In the instant case, the District Court found after an extensive hearing that Fuller had orally waived his Miranda rights. Because there is sufficient evidence on the record to support this finding, the District Court did not err in admitting statements the defendant made while in custody.
Fifth, Weston argues that the District Court erred when it denied his motion for severance. A decision whether to sever a defendant from a joint trial pursuant to Rule 14 of the Federal Rules of Criminal Procedure2 is “confided to the sound discretion of the trial court,” United States v. Feyrer, 333 F.3d 110, 114 (2d Cir.2003), and a district court’s exercise of that discretion is “virtually unreviewable” on appeal, United States v. Yousef, 327 F.3d 56, 150 (2d Cir.2003). To challenge the denial of a severance motion, defendant must show that he suffered a prejudice “so severe that his conviction constituted a miscarriage of justice.” United States v. Stewart, 433 F.3d 273, 314 (2d Cir.2006). In this case, Weston has not met this stringent requirement inasmuch as he has alleged various hardships common in every multi-defendant trial, such as differing levels of culpability or standards of proof. For these reasons, we conclude that the District Court did not err in denying Weston’s motion for severance.
Sixth, Weston argues that the government’s opening and closing statements denied his constitutional right to a fair trial and that the District Court erred when it *445failed to give curative instructions. To assert that a prosecutor’s remarks warrant reversal, the defendant must allege misconduct that is “so severe and significant as to result in the denial of [his] right to a fair trial,” United States v. Locascio, 6 F.3d 924, 945 (2d Cir.1993), and that the remarks caused “substantial prejudice,” United States v. LaMorte, 950 F.2d 80, 83 (2d Cir.1991). In this case, the prosecutor’s allegedly errant comments did not cause “substantial prejudice,” id., because there was overwhelming evidence that Weston was connected with Two Mile Pos-see and guilty of the crimes charged. For these reasons, we conclude that the District Court did not err and that defendant is not entitled to a new trial.
Seventh, Weston argues that the District Court “abused its discretion” in permitting certain leading questions. Federal Rule of Evidence 611(c) provides that “[Heading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” We have interpreted this as “words of suggestion, not command,” United States v. DeFiore, 720 F.2d 757, 764 (2d Cir.1983), and, as a result, we have shown an “almost total unwillingness to reverse for 611(c) infractions,” United States v. Ajmal, 67 F.3d 12, 16 (2d Cir.1995) (internal quotations omitted). In this case, the District Court did not “abuse its discretion” by allowing leading questions on direct examination in limited circumstances. Furthermore, had the District Court “abused its discretion,” this would have been harmless error as the evidence against Weston was overwhelming-
Eighth, Weston argues that the government withheld material that was required to be disclosed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Before trial, counsel for Weston and Fuller requested certain material they believed might be exculpatory. Defendants and the government then agreed to provide the requested material to the District Court for in camera review ex patíe. After reviewing the documents, the District Court found that nothing in the documents was Brady material, and thei’efore the govexmment was not required to give the matexdals to defendants. Upon considering the alleged Brady material irrespectively in the context of the entire record, see United States v. Payne, 63 F.3d 1200, 1210-11 (2d Cir.1995); see also United States v. Coppa, 267 F.3d 132, 140 (2d Cir.2001) (“[T]he scope of a defendant’s constitutional right ... is ultimately defined retrospectively.”), we conclude even if the government had withheld evidence suppoi’ting Weston’s argument that he had not participated in the Two Mile Posse, but instead participated in another conspiracy to distribute marijuana, this would not have been prejudicial, as four coopei’ating witnesses implicated Weston in the Two Mile Posse conspiracy. Because the gov-eimment’s alleged withholding of cei’tain materials was, at minimum, insufficient to create prejudice, we conclude that the District Coui’t did not err when it did not require the government to share certain materials with defendants.
Ninth, Fuller argues that the District Court ex*red when it instructed the jury that he could be convicted of two murders on the theory of liability set forth in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) (holding that one can be criminally liable for the i'easonably fox’eseeable acts of one’s cocon-spirators), because there was insufficient evidence that the murders wex-e convicted in the fux'therance of a conspii’acy. As explained above in discussing the first issue on appeal, there was sufficient evidence that these murdex's were in furtherance of a conspiracy, and therefoi'e a jury instruction regarding Pinkerton liability was appropriate. Accordingly, we con-*446elude that the District Court did not err in instructing the jury on Pinkerton liability.
Tenth, Weston argues that the District Court erred when it denied his motion for a new trial due to alleged misrepresentations by the government and because of newly-discovered evidence. The Federal Rules of Criminal Procedure allow courts to “vacate any judgment and grant a new trial if the interest of justice so requires,” Fed.R.Crim.P. 33(a), but “motions for a new trial are disfavored in this Circuit.” United States v. Gambino, 59 F.3d 353, 364 (2d Cir.1995). Accordingly, district courts should only grant motions for new trials if there is “a real concern that an innocent person may have been convicted.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992). We review this decision only for “abuse of discretion.” United States v. Torres, 128 F.3d 38, 48 (2d Cir.1997). The District Court’s findings that there was no prosecutorial misconduct and that the newly discovered evidence “would not likely have led to a different outcome at trial,” were not clearly erroneous. Accordingly, we conclude that the District Court did not err in denying defendant’s motion for a new trial.
Eleventh, Cooper, Fuller, Thomas, and Weston argue that the District Court erred in declining to hold an evidentiary hearing to explore the extent of the alleged misconduct of a government witnéss who, it was later discovered, committed perjury at trial and to require, if necessary, a new trial. Whether perjured testimony requires a new trial “depends on the materiality of the perjury to the jury’s verdict and the extent to which the prosecution was aware of the perjury.” United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991). Although the District Court declined to conduct an evidentiary hearing on this motion for new trial — a decision we review only for “abuse of discretion,” United States v. White, 972 F.2d 16, 22 (2d Cir.1992) — the District Court did thoroughly consider the materiality of the perjury to the verdict rendered by the jury and the extent of the prosecution’s asserted knowledge of the perjury. The District Court determined that the perjured testimony did not affect the outcome of the trial and that the prosecution had no knowledge that the witness intended to perjure himself. Because the record amply supports this ruling, we conclude that the District Court did not err in declining to conduct an evidentiary hearing or grant a new trial because of perjured testimony.
Twelfth, Cooper argues that his sentence of life imprisonment for murder in aid of racketeering violates the Fifth and Eighth Amendments. Specifically, Cooper argues that the mandatory minimum sentence of life imprisonment is unconstitutional under the Due Process Clause of the Fifth Amendment and that his sentence is so disproportionate to his crime that it violates the Eighth Amendment. Regarding the Fifth Amendment claim, the Supreme Court has squarely rejected the argument that mandatory minimum sentences violate due process and held that Congress may confine the courts’ discretion in sentencing with mandatory minimum sentences in statutes. Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). As long as the mandatory minimum is neither so harsh that it violates the Eighth Amendment nor based on arbitrary classifications that violate the Due Process Clause, the Court may impose any sentence authorized by statute. Id. at 465, 111 S.Ct. 1919. Alternatively, Cooper argues that mandatory minimum sentences violate 18 U.S.C. 3553(a).3 We recently *447rejected this argument. United States v. Samas, 561 F.3d 108, 110-11 (2d Cir.2009). Finally, Cooper argues that his sentence of life imprisonment violates the Eighth Amendment. To violate the Eighth Amendment, the sentence must be “grossly disproportionate” to the crime. See, e.g., Lockyer v. Andrade, 538 U.S. 63, 72-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (requiring that defendant show that sentence is grossly disproportionate to the crime); Yousef, 327 F.3d at 163 (same). In this case, a sentence of life imprisonment is not grossly disproportionate to defendant’s crime of participating in two murders in aid of racketeering along with numerous other crimes. The sentence, though severe, fits the seriousness of the crimes. For the above reasons, we conclude that the District Court did not err in sentencing Cooper to life imprisonment.
Thirteenth, King argues that his sentence — principally, imprisonment of 51 months — is unreasonable. Because King completed his sentence of imprisonment on or about May 12, 2008, this sentencing challenge is moot. When a defendant has completed his term of imprisonment, a challenge to the length of the sentence is moot, particularly where, as here, the defendant faces deportation and, therefore, has “only a quixotic chance of legally returning to the United States to serve the remainder of his term of supervised release.” United States v. Williams, 475 F.3d 468, 479 n. 6 (2d Cir.2007) (internal quotation marks omitted). We conclude that King’s challenge is moot.
Fourteenth, and finally, Phillips argues that he was improperly sentenced because he did not receive the benefits of the “safety valve” provision at sentencing. In his plea agreement, however, Phillips expressly waived his right to appeal a sentence within or below the stipulated Guidelines range of 120 to 121 months’ imprisonment. Because this waiver was knowing and voluntary, and Phillips was sentenced to 120 months’ imprisonment, we conclude that, in such circumstances, he may not challenge his sentence.
CONCLUSION
We have considered all of defendants’ arguments and find them to be without merit. Therefore, in light of the foregoing, the judgments of the District Court are AFFIRMED with respect to defendants Campbell, Cooper, Thomas, Weston, Brown, and King. The appeals challenging the sentences of defendants King and Phillips are DISMISSED. The government’s motions for summary affirmance of judgments of conviction of defendants Shaw and Mattis are GRANTED; the Anders motions, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) of counsel for Shaw and Mattis are GRANTED; and, accordingly, the judgments of the District Court with respect to Shaw and Mattis are AFFIRMED.
. Rule 801(d)(2)(E) of the Federal Rules of Evidence states in relevant part:
A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
. Rule 14 states in relevant part: "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed.R.Crim.P. 14(a).
. Section 3553(a) states in relevant part: "The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of *447this subsection.” The section then goes on to list several factors that courts should consider when imposing sentences.
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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/8475157/
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SUMMARY ORDER
Plaintiff On Time Aviation, Inc. (“On Time”) appeals from awards of (1) summary judgment in favor of defendant Bombardier Capital, Inc. (“Bombardier”), and (2) sanctions against On Time’s counsel under Federal Rule of Civil Procedure 11. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
We review an award of summary judgment de uovo, viewing the evidence in the light most favorable to the non-moving party. Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir.2008). We will affirm a grant of summary judgment only where the record reveals “no genuine issue as to any material fact” and the movant’s entitlement to judgment “as a matter of law.” Fed.R.Civ.P. 56(c). We “apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).
1. The Contract Claim
a. Disclaimer
On Time argues that the district court erred in determining that an explicit disclaimer in the parties’ final purchase and sale agreement (the “Agreement”) stating that Bombardier was selling a particular aircraft “ ‘AS IS, WHERE IS’, with no representations or warranties of any kind or nature by [Bombardier], including but not limited to warranties of merchant*450ability and fitness for a particular purpose,” Callahan Affirmation, Exhibit C at 1, was unambiguous and clearly covered the aircraft engines. Whether a contract is ambiguous is a question of law for the court. See Aon Fin. Prods., Inc. v. Societe Generate, 476 F.3d 90, 95 (2d Cir.2007). Accordingly, we construe the contract de novo. See Jessica Howard Ltd. v. Norfolk S. R.R. Co., 316 F.3d 165, 168 (2d Cir.2003). Plaintiff relies on a Delivery and Acceptance Receipt (the “Delivery Receipt”) confirming acceptance of “the Equipment ‘AS IS, WHERE IS,’ ” Fish-man Affirmation, Exhibit 17 at 1 (emphasis added), to argue that the variance between the two disclaimer clauses — one referring to the “Equipment,” the other to the “Aircraft” — gives rise to ambiguity as to whether Bombardier disclaimed responsibility for necessary engine repairs to the aircraft. Like the district court, we are not persuaded by this argument.
While the Delivery Receipt does not define the term “Equipment,” it states that On Time’s execution and delivery of the document constituted “without further act, the unconditional and irrevocable acceptance by Purchaser of the Aircraft under the Agreement.” Id. Further, it explicitly defines the Aircraft to include two engines, providing their make, model, and serial numbers. The Agreement, moreover, references the Delivery Receipt, stating that the documents taken together “shall evidence the purchase by [On Time]” of the Aircraft. Read together, this language admits of no ambiguity: Bombardier’s sale of the aircraft “AS IS” disclaimed responsibility for any defects, including those pertaining to the engines. See United Illuminating Co. v. Wisvest-Conn., LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002) (stating that “words of the contract must be given their natural and ordinary meaning” and that court “will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity” (internal quotation marks omitted)); Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 269, 901 A.2d 341 (2006) (noting that “polestar of construction is the intention of the parties to the contract as revealed by the language used, taken as an entirety” (internal quotation marks omitted)); O’Brien Bros.’ P’ship, LLP v. Plociennik, 182 Vt. 409, 414, 940 A.2d 692 (2007) (observing that unambiguous contract terms “will be given effect and enforced in accordance with their language” (internal quotation marks omitted)).1
b. Agreement To Assign and To Transfer the Service Plan
On Time argues that the district court nevertheless erred in failing to recognize that Bombardier’s refusal to pay for engine repairs raised a triable issue of fact as to its breach of the Agreement’s promise to assign and to transfer the service plan. We disagree. Bombardier’s service contract with Honeywell sets out various conditions for transfer of the plan, none of which allocates responsibility for the cost of engine repairs. Moreover, in the months following the sale of the Aircraft, *451Honeywell indicated that it was prepared to transfer the service plan once the damaged engines were repaired and the aircraft deemed airworthy. Plaintiffs service-plan arguments thus reduce to a claim that the assign-and-transfer clause itself constitutes an implied engine warranty obligating Bombardier to pay for engine repairs. As already explained, however, all such warranties were explicitly disclaimed by the “AS IS” provision of the sale contract. See U.C.C. § 2-316(3)(a) (“[U]nless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’... or other language that in common understanding calls the buyer’s attention to the exclusion of warranties [and] makes plain that there is no implied warranty.”).
Accordingly, judgment was properly entered in favor of Bombardier on plaintiffs contract claim.
2. The Fraud Claim
Plaintiffs fraud claim rests on two theories: (1) that Bombardier promised to assign and transfer the Honeywell service plan when it had no intention of doing so, and (2) that Bombardier fraudulently induced On Time to sign the sale contract with false representations that the engines were in good standing under the plan. The first theory merits little discussion, as it turns on Bombardier’s refusal to pay for engine repairs. As stated above, the Agreement’s disclaimer of warranties shifted any risk of engine damage to On Time, removing Bombardier’s payment for repairs as a condition of performance.
With respect to the fraudulent inducement claim, plaintiff argues that the district court erred in failing to apply New Jersey or Vermont law. We conclude that the claim does not survive under the law of either state. To establish fraudulent inducement, a plaintiff must prove that its reliance on the alleged misstatements was reasonable (New Jersey) or justifiable (Vermont). See Rowen Petroleum Props., LLC v. Hollywood Tanning Sys., Inc., No. 08-4764, 2009 WL 1085737, at *3 (D.N.J. Apr.20, 2009) (citing Banco Popular N. Am. v. Gandi, 184 N.J. 161, 173, 876 A.2d 253 (2005)); Von Turkovich v. APC Capital Partners, LLC, 259 F.Supp.2d 314, 321 (D.Vt.2003) (citing Sugarline Assocs. v. Alpen Assocs., 155 Vt. 437, 586 A.2d 1115 (1990)). As noted by the district court, the plaintiff did not plead justifiable or reasonable reliance in its complaint. Nor does it address the element on appeal. As a matter of law, no reasonable jury could find that On Time reasonably or justifiably relied on Bombardier’s alleged misrepresentations about engine quality in light of, record evidence that (1) the Agreement explicitly disclaimed all representations and warranties; (2) the Delivery Receipt referenced “unconditional and irrevocable” acceptance “without further act”; (3) On Time was aware of engine problems before signing the Agreement; and (4) On Time nevertheless failed to inspect the aircraft before buying it. Cf. Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007) (“A genuine issue exists for summary judgment purposes where the evidence, viewed in the light most favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s favor.” (internal quotation marks omitted)).
3. Sanctions
Plaintiff asserts that the district court erred in imposing Rule 11 sanctions against its attorney. Because the record reasonably supports the district court’s finding that the attorney’s own motion for sanctions against defendant’s counsel was unsupported by the record and objectively unreasonable, we identify no abuse of discretion. See Storey v. Cello, 347 F.3d 370, 393 (2d Cir.2003); Fed.R.Civ.P. 11, 1993 Advisory Comm. Notes (observing that fil*452ing of frivolous Rule 11 motion “is itself subject to the requirements of the rule and can lead to sanctions”).
Plaintiff argues that the district court nevertheless erred in using out-of-district rates to calculate the attorney’s fees awarded as a sanction. See generally Simmons v. New York City Transit Auth., 575 F.3d 170 (2d Cir.2009); Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d Cir.2008). The reasoning behind the calculation of awards under fee-shifting statutes such as the Americans with Disabilities Act, see 42 U.S.C. § 12205, and the Voting Rights Act, see 42 U.S.C. § 19731(e), is not, however, precisely analogous to that applicable to Rule 11 awards. The purpose of a Rule 11 award “is not compensation of the victimized party but rather the deterrence of baseless filings and the curbing of abuses.” Caisse Nationale de Credit Agricole-CNCA, N.Y. Branch v. Valcorp, Inc., 28 F.3d 259, 266 (2d Cir.1994); see also Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 369 F.3d 91, 98 (2d Cir.2004) (observing that Rule 11 “is not a fee-shifting mechanism” (internal quotation marks omitted)). Here, the district court explicitly referenced this deterrent purpose in setting the sanction amount. See On Time Aviation, Inc. v. Bombardier Capital, Inc., No. 04-cv-1765, order at 5 (D.Conn. Dec. 23, 2008) (awarding fees). Toward this object, the district court only considered the hours defense counsel spent answering plaintiff’s attorney’s own sanctions motion and used rates significantly lower than those actually charged by defendant’s attorneys. Id. at 4. We do not identify any abuse of discretion in the district court’s award in this case. See Caisse Nationale de Credit Agricole-CNCA, N.Y. Branch v. Valcorp, Inc., 28 F.3d at 266 (recognizing court discretion in determining reasonable fee under Rule 11).
We have considered all of plaintiffs remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
. We need not reach choice of law issues presented by the contract claims, as the result is the same under the laws of Connecticut, where On Time conducted the bulk of its negotiations through an agent; New Jersey, where On Time executed the agreement; and Vermont, headquarters of Bombardier, from which it negotiated and executed the transaction. All three states have adopted the Uniform Commercial Code, see Conn. Gen.Stat. § 42a-1-101 et seq.; N.J. Stat. Ann. § 12A:1-101 et seq.; Vt. Stat. Ann. tit. 9A, § 1-101 et seq., and none allows parol evidence to introduce ambiguity into otherwise clear contract terms. See United Illuminating Co. v. Wisvest-Conn., LLC, 259 Conn. at 670-75, 791 A.2d 546; Conway v. 287 Corporate Ctr. Assocs., 187 N.J. at 269, 901 A.2d 341; O’Brien Bros.’ P’ship, LLP v. Plociennik, 182 Vt. at 414, 940 A.2d 692.
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SUMMARY ORDER
Petitioner Scott L. Fenstermaker, a criminal defense lawyer, sued for declaratory and injunctive relief (1) on behalf of detainees held at the United States Naval Station at Guantanamo Bay, Cuba, alleging violations of their rights to counsel and speedy trial under the Fifth and Sixth Amendments, the Uniform Code of Military Justice, see 10 U.S.C. §§ 810, 838, and the Rules for Court Martial; and (2) on his own behalf, alleging violations of his First and Fifth Amendment rights. Fenster-maker now appeals the district court’s dismissal of his complaint for lack of standing and failure to state a claim, a ruling we review de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in Fenstermaker’s favor. See Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). “The party invoking federal jurisdiction bears the burden of establishing that jurisdiction exists.” Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.2009) (internal quotation marks and citations omitted). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Fenstermaker’s Standing To Sue on Behalf of Detainees a. Third-PaHy Standing
Fenstermaker submits that he has third-party, or jus tertii, standing to sue on behalf of detainees. To establish third-party standing, Fenstermaker must show that (1) he has suffered an injury in fact, (2) he has a “close relation” to the detainees whose rights he seeks to assert, and (3) detainees are hindered from protecting their own interests. See Powers v. Ohio, 499 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Because Fenstermaker must satisfy all three prongs of this test, our conclusion that he lacks the re*455quired “close relation” means that he cannot establish third-party standing in this case even were we to assume that he has suffered an injury in fact and that the detainees are hindered in protecting their own interests.
A close relation supporting third-party standing exists when “the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter.” Singleton v. Wulff, 428 U.S. 106, 115, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Eisenstadt v. Baird, 405 U.S. 438, 445, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (“[T]he relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so.”). Relying on Craig v. Boren, 429 U.S. 190, 192-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), and Eisenstadt v. Baird, 405 U.S. at 443-46, 92 S.Ct. 1029, Fenstermaker contends that he satisfies the “close relation” prong of third-party standing based on a “vendor-vendee relationship.” Appellant’s Br. at 16. We are not persuaded.
Fenstermaker alleged only that he might establish an attorney-client relationship with detainees in the future.1 Thus, Fenstermaker’s third-party standing is foreclosed by Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004), which declined to allow lawyers to premise third-party standing on relationships with hypothetical future clients, see id. at 131, 125 S.Ct. 564 (“The attorneys before us do not have a ‘close relationship’ with their alleged ‘clients’; indeed, they have no relationship at all.”). Even if we were to accept Fenstermaker’s assertion that this relationship is enough, Fenster-maker fails to demonstrate that his interests sufficiently align with those of the detainees. As a criminal defense lawyer and member of the pool of qualified civilian defense counsel, Fenstermaker’s interest is in defending detainees who are in fact brought to trial for war crimes. But detainees may well have an interest in avoiding prosecution or challenging their detention through other legal avenues. Accordingly, we conclude that Fenster-maker has not established the close relation required to assert third-party standing.
b. Nextr-Friend Standing
Fenstermaker also attempts to sue as next friend to the detainees. The Supreme Court has established at least two prerequisites for next-friend standing: “First, a ‘next friend’ must provide an adequate explanation — such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action ... Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate.” Whitmore v. Arkansas, 495 U.S. 149, 163-64, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Our conclusion that *456Fenstermaker fails to establish that he is “truly dedicated to the best interests” of the detainees precludes his claim of next-friend standing.
Fenstermaker contends that he has shown “ample dedication to the Detainees and their cause” by initiating this action and by litigating detainee cases before both Article III courts and military commissions. Appellant’s Br. at 26-27. Without in any way impugning Fenstermakei'’s efforts, we conclude that they are insufficient to show dedication to the particularized interests of the detainees involved in this case. Cf. Does v. Bush, No. Civ. 05 313, 2006 WL 3096685, at *6 (D.D.C. Oct. 31, 2006) (noting that, without lawyer-client relationship, lawyer seeking to assert detainees’ rights as next friend could not know which legal channels they wished to pursue).
The parties also dispute whether the “next friend” must also have a “significant relationship” with the real party in interest. See Appellant’s Br. at 26-27. Even assuming, as Fenstermaker does, that a significant relationship is not a separate requirement for next-friend standing, we conclude that Fenstermaker’s admitted lack of any significant relationship with the detainees involved here bolsters our conclusion that he cannot satisfy the “truly dedicated” requirement for next-friend standing.
c. Standing-Based Discovery
Fenstermaker further submits that the district court abused its discretion in denying discovery that might have revealed facts supporting his claimed standing. We do not think the district court exceeded its “wide latitude to determine the scope of discovery” in denying Fenstermaker’s belated request. In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir.2008). Nevertheless, because Fenstermaker argues on appeal that this discovery would principally have revealed that detainees are hindered in litigating their own cases — a prong of the standing analysis we do not reach here — any discovery in this regard would not alter our conclusion that Fenstermaker lacks both third-party and next-friend standing.
2. Fenstermaker’s Individual First Amendment Claim
Fenstermaker also contends that the district court erred in dismissing his claim that defendants infringed his First Amendment right to disseminate information about his legal practice. We disagree. Although litigation is a form of political expression protected by the First Amendment, see NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and attorneys have a First Amendment right to advertise their legal practice, see Bates v. State Bar of Ariz., 433 U.S. 350, 383, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), defendants’ inability to deliver Fenstermaker’s statement of practice to unknown detainees not yet subject to military commission charges does not violate the First Amendment. Because Fenstermaker could have distributed — and ultimately did distribute — his statement of practice by sending it to another address published by the Defense Department, Fenstermaker’s challenge reduces to the notion that he has a right to communicate in a particular manner, i.e., by mail sent to a particular address and distributed by particular government officials.
If the requirement that Fenstermaker send correspondence to a particular address restrained his freedom of speech at all, it was therefore a “time, place, and manner restriction,” which survives First Amendment scrutiny so long as it is “not ... based on the content of the message, [is] narrowly tailored to serve a significant governmental interest, and ... leave[s] *457open ample alternatives for communication.” Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); accord Lusk v. Village of Cold Spring, 475 F.3d 480, 493 (2d Cir.2007). Fenstermaker argues that the Defense Department adopted a “policy of rejecting Fenstermaker’s correspondence,” which operates as “a thinly-disguised attempt to preclude Detainees from obtaining effective and qualified counsel.” Appellant’s Br. at 35. This hyperbolic assertion is belied by the record, which shows that Fenstermaker could send correspondence to detainees at an address made publicly available by the Defense Department.2 Any failure of the Office of Military Commissions to distribute Fenstermaker’s statement of practice to detainees not yet subject to its jurisdiction was therefore a content-neutral restriction that left open ample alternative channels of communication through the centralized address provided by the Defense Department. Accordingly, on this record, we conclude that Fenstermaker has failed to state a colorable First Amendment claim.
We have considered Fenstermaker’s other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. Fenstermaker asserts that, after filing his complaint, he established an attorney-client relationship with Mustafa Bin-Ahmad Al-Hawsawi. We decline to examine the documents Fenstermaker seeks to submit under seal to demonstrate this fact because there is no question that Fenstermaker did not represent any of the detainee parties when he filed his complaint, and "standing is to be determined as of the commencement of suit.” Un-jan v. Defenders of Wildlife, 504 U.S. 555, 571 n. 5, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); accord Comer v. Cisneros, 37 F.3d 775, 791 (2d Cir.1994). Fenstermaker also moves to expand the record on appeal to show, inter alia, that he has established attorney-client relationships with certain detainees after the conclusion of the district court proceedings. We hereby deny that motion for failure to comply with Fed. R.App. P. 10(e)(2)(C).
. We do not decide whether the government's alleged failure to deliver Fenstermaker's mail as privileged in the absence of an appropriate protective order alters the First Amendment analysis, as these events occurred after the district court proceedings and are not properly in the record on appeal.
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SUMMARY ORDER
Appellant Michael J. Wang, pro se, appeals from the district court’s dismissal of his complaint against the Office of Professional Medical Conduct (“OPMC”), of the New York State Department of Health, after remand by this Court for consideration of whether OPMC enjoys Eleventh Amendment sovereign immunity from Wang’s 42 U.S.C. § 1981, federal constitutional, state constitutional, and state law claims. See Wang v. Office of Professional Medical Conduct, 228 Fed.Appx. 17 (2d Cir.2007) (unpublished summary order). In that decision, we also affirmed the dismissal of Wang’s claims against OPMC pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, “ ‘accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.’ ” Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir.2009) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002)); see also Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir.2003). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
The district court correctly determined that Wang’s § 1981 claim was precluded by Eleventh Amendment immunity. See Singletary v. Missouri Dep’t of Corrections, 423 F.3d 886, 890 (8th Cir.2005) (noting that “other circuits have uniformly held that a state is immunized from § 1981 liability under the Eleventh Amendment,” and collecting cases). Wang’s state constitutional and state law claims are similarly precluded. See Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 541, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002).
With respect to Wang’s unspecified “federal constitutional claims,” liberally construing his pro se complaint, he sought relief under Section 1 of the Fourteenth Amendment. However, this Court has held that Section 1 does not abrogate the States’ Eleventh Amendment immunity, and a suit for monetary damages under *461the Fourteenth Amendment is therefore barred. See Santiago v. New York State Dep’t of Corr. Services, 945 F.2d 25, 28-32 (2d Cir.1991). Insofar as Wang’s complaint could be construed as seeking equitable relief for an alleged Fourteenth Amendment violation, while such a claim “is not barred by the Eleventh Amendment’s ban on retroactive damage actions, it too must be dismissed because it does not follow the requirement, established in Ex Parte Young, [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ], that a plaintiff seeking prospective relief from the state must name as defendant a state official rather than the state or a state agency directly,” Santiago, 945 F.2d at 32.
For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
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SUMMARY ORDER
Petitioner-Appellant John Lockhart appeals from the district court’s June 10, 2008 decision and order denying, inter alia, Petitioner’s motion for habeas corpus relief under 28 U.S.C. § 2254 based on the claim that the complainant witness’s show-up identification of the petitioner was unnecessarily suggestive. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
After reviewing the issues on appeal and the record of proceedings below, we affirm for substantially the same reasons articulated by the district court in its thoughtful and well-reasoned opinion and order addressing the pre-trial identification issue, Lockhart v. Brown, No. 9:05-cv-1166, 2008 WL 2397609, at *4-7 (N.D.N.Y. June 10, 2008). The state trial court and the Appellate Division decisions with respect to the issues of witness identification presented by this case were not “contrary to,” nor did they “involve[] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Dunlap v. Burge, 583 F.3d 160, 165-66 (2d Cir.2009) (recognizing that the interaction of general constitutional rules governing pretrial identification procedures and the deferential standard of habeas review “affords significant discretion to the state court”).
Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Plaintiff Denise M. Merritt, ‘pro se, brought claims against both defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging wrongful termination, disparate treatment, and retaliation. The United States District Court for the Eastern District of New York (Mauskopf, J.) granted summary judgment in favor of defendants. Merritt v. New York City Transit Auth., No. 06 Civ. 5548, 2008 WL 4508258 (E.D.N.Y. Sept. 30, 2008). We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Having conducted a de novo review of the record, we find each of plaintiffs arguments to be without merit and affirm for substantially similar reasons as those stated by the district court. Accordingly, the order of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Appellant B & M Investment LLC (“B & M”) seeks review of two orders of the district court (Droney, J.) affirming Bankruptcy Court decisions that (1) denied its second motion for relief from stay; and (2) overruled its objections to the debtor’s motion to determine secured status and confirm the plan. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
*512B & M Investments LLC held a mortgage from Michael Calise. Calise failed to make the required mortgage payments, and B & M commenced a foreclosure action in Connecticut state could. B & M obtained a judgment of strict foreclosure in Connecticut Superior Court. Four days before the foreclosure was finalized, Calise filed for protection from his creditors pursuant to Chapter 11 of the Bankruptcy Code. B & M filed for relief from the automatic stay in August, 2000. The motion was set down for a hearing, and just before that hearing took place the parties entered into a settlement agreement resolving the motion, which was “so ordered” by the Bankruptcy Court. The terms of the settlement agreement called for Calise to make monthly adequate protection payments of $10,000 to B & M and pay post-petition property taxes, until confirmation or dismissal, in exchange for an extension of the automatic stay.
On March 7, 2002, this Court issued its decision in In re Canney, 284 F.3d 362 (2d Cir.2002). Canney, which involved a Vermont strict foreclosure, clarified the law regarding the interplay between the Bankruptcy Code’s stay provisions and strict foreclosure law. In a “strict foreclosure,” the property is not sold. Instead, when a borrower defaults on a mortgage loan, the mortgagee obtains a foreclosure judgment. At that time, the court sets a deadline by which the borrower must pay off the mortgage debt, known as the redemption period. If the borrower fails to redeem the property by the deadline, the lender receives immediate rights to the property. See, e.g., Provident Bank v. Lewitt, 852 A.2d 852, 84 Conn.App. 204 (Conn.App.Ct.2004). Prior to Canney, the courts were mixed as to which stay provision of the Bankruptcy Code applied to extend the redemption period-the 60-day stay set forth in 11 U.S.C. § 108(b), or the indefinite stay provision set forth in 11 U.S.C. § 362(a). Canney holds that Section 108(b) applies. Canney, 284 F.3d at 373. As part of its analysis, the Canney court held that once the foreclosure judgment issues, “full legal and equitable title to the property” reverts to the mortgagee. Id. at 369-70.
On April 11, 2002, B & M filed a second motion for relief from the stay, contending that Canney changed the law, and Calise no longer had any interest, legal or equitable, in the property. The Bankruptcy Court denied the motion, finding that B & M was bound by the settlement stipulation, and that res judicata barred relitigation of the motion for relief from the stay. B & M appealed that order, and the decision was upheld by the District Court.
On August 18, 2006, the Bankruptcy Court entered an order confirming Calise’s reorganization plan, ruling B & M was a secured creditor under the Plan. The Plan called for Calise to pay B & M’s claims in full on the effective date of the plan, and that upon full payment of B & M’s claims, its lien on the property would be satisfied and discharged.
After the plan was confirmed, Calise commenced repayment according to the plan’s terms. Calise obtained a $2.2 million loan using the property as collateral, and on the plan’s effective date, Calise tendered a check to B & M for $1.6 million, the full extent of its obligation under the plan. B & M did not cash the check. In addition, Calise paid in full the claims of some classes of creditors.
The district court properly affirmed the Bankruptcy Court’s findings. Settlement agreements are considered “a final judgment on the merits,” and thus can support a finding of res judicata. Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968 F.2d 164, 168 (2d Cir.1992). In determining the preclusive effect of a settlement agreement, a court looks to the intent of the parties entering *513into the settlement. Id. B & M argues that it never intended to relinquish its claim to the property as a result of extending the debtor’s redemption period. However, by stipulating to extend the stay through the time the plan was confirmed or the complaint dismissed, B & M (1) held itself out as a secured creditor of the estate; and (2) accepted the tolling of the expiration of the debtor’s period for redemption in exchange for adequate protection payments of $10,000 a month — the exact issues B & M tried to re-litigate in its second motion for relief from stay.
Moreover, it would simply be inequitable to permit B & M to change its position at this time. B & M accepted roughly $700,000 from Calise pursuant to the settlement agreement it now seeks to set aside. In reliance on the settlement agreement, Calise created a plan accepted by the Bankruptcy Court and ultimately tendered to B & M the amount due and owing under that plan. Calise also paid other creditors, using proceeds from a new loan secured, in part, using the property as collateral. As applied in bankruptcy cases, the doctrine of equitable mootness is an prudential one, used to dismiss an appeal “as moot when, even though effective relief could could conceivably be fashioned, implementation of that relief would be inequitable.” Deutsche Bank AG v. Metromedia Fiber Network (In re Metromedia Fiber Network, Inc.), 416 F.3d 136, 143 (2d Cir.2005) (quotation marks omitted). “The doctrine is therefore invoked to avoid disturbing a reorganization plan once implemented, and can be applied in two situations: [w]hen an unstayed order has resulted in some comprehensive change in circumstances, and when a reorganization is substantially consummated.” In re Source Enterprises Inc., 392 B.R. 541, 547 (S.D.N.Y.2008) (internal quotation and citation omitted). While B & M did seek a stay of the confirmation order, it did not seek a stay in this court, and did not move for an expedited appeal. Indeed, the docket sheet reflects that B & M sought multiple extensions of its time to file this appeal. To undo the settlement agreement and permit B & M to seize the property would undo the entire Plan, an action equity will not tolerate.
Finally, a settlement agreement— even a “so ordered” settlement agreement-is a contract between the parties, and represents “a compromise between conflicting claims.” Hatalmud v. Spellings, 505 F.3d 139, 146 (2d Cir.2007); see also In re Connaught Properties, Inc., 176 B.R. 678, 684 (BR D.Conn.1995) (“court-approved settlement agreements, though reduced to judgment in some cases, represent not the court’s own judgment or that of a jury, but rather the parties’ compromise of the lawsuit put in writing”). In this Circuit, it is well settled that “a change in law does not render an agreement void.” Anita Foundations Inc. v. ILGWU Nat’l Retirement Fund, 902 F.2d 185, 189-90 (2d Cir.1990). B & M had the option to have a hearing on the issue of whether or not the stay should be lifted, and instead of litigating the issue chose to enter into a settlement agreement with Calise. Having made that decision, B & M is bound by it.
We have examined the remainder of B & M’s claims and we find them without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.
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SUMMARY ORDER
Petitioner Kintoro Pranata, a native and citizen of Indonesia, seeks review of the February 5, 2009 order of the BIA denying his motion to reopen. In re Kintoro Pranata, No. A 096 266 278 (B.I.A. Feb. 5, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). We find that the BIA did not abuse its discretion in denying Pranata’s *531motion to reopen as untimely. As the BIA noted, it had issued a final order of removal in May 2005, but Pranata did not file his motion until September 2008, well beyond the 90-day deadline. See 8 C.F.R. § 1008.2(c)(2). There is no time limit for filing a motion to reopen “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(8)(h). Here, however, the BIA properly found that Pranata’s motion did not qualify for such an exception, and that he did not otherwise demonstrate his prima facie eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Pranata argues that our decision in Mufied v. Mukasey, 508 F.3d 88 (2d Cir.2007), requires the BIA to articulate precise legal standards for analyzing whether a petitioner has established a pattern or practice of persecution in his or her home country. As a preliminary matter, Pranata’s reliance on Mufied does not excuse his late filing, as the regulations do not provide that an untimely motion to reopen may be excused on these grounds. 8 C.F.R. § 1003.2(c)(3)(ii), Furthermore, in Mufied, we remanded because neither the Immigration Judge (“IJ”) nor the BIA considered Mufied’s pattern or practice claim. Mufied, 508 F.3d at 91. Here, on the other hand, the BIA directly addressed the claim, finding that Pranata failed to establish materially changed country conditions “with respect to this issue of a pattern or practice of persecution of Christians of Chinese ethnicity or any other ethnicity in Indonesia.” Accordingly, remand under Mufied is not required here.
Pranata also argues that the BIA did not adequately consider his evidence of materially changed country conditions in Indonesia. Contrary to Pranata’s argument, the BIA considered the evidence, including 53 documents, 8 exhibits, an affidavit, and a State Department Report, before rejecting Pranata’s claim. The BIA noted that “the government of Indonesia generally respects freedom of religion,” citing the 2007 State Department International Religious Freedom Report for Indonesia. The BIA also found that the remaining evidence Pranata submitted did not reflect a meaningful change in country conditions. Pranata is essentially requesting that the BIA analyze and discuss in its decision each piece of evidence he submitted. However, the BIA is not required to “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008), as long as it “has given reasoned consideration to the petition, and made adequate findings.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). Because we cannot find that the BIA’s decision “provide[d] no rational explanation, inexplicably departed] from established policies, is devoid of any reasoning, or contains only summary or conclusory statements,” the BIA did not abuse its discretion in denying Pranata’s motion to reopen. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001).
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 *532of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff Optimum Shipping & Trading S.A. appeals from a February 26, 2009, 2009 WL 497341, order of the District Court. While this appeal was sub judice, we decided Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir.2009), in which we overruled Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir.2002), and held that electronic fund transfers being processed by intermediary banks are no longer subject to attachment under Rule B. In another recent decision, Haivknet, Ltd. v. Overseas Shipping Agencies, No. 09-2128-cv, 587 F.3d 127, 2009 WL 3790654 (2d Cir. Nov.13, 2009), we held that our decision in Shipping Corp. of India applies retroactively. Accordingly, we VACATE the District Court’s order and REMAND the matter to the District Court with instructions to enter an order to show cause why it should not dismiss the complaint for lack of personal jurisdiction in light of these recent decisions.
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SUMMARY ORDER
Plaintiff Annapolis Shipping Company Limited appeals from a February 23, 2009 order of the District Court. While this appeal was sub judice, we decided Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir.2009), in which we overruled Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir. 2002), and held that electronic fund transfers being processed by intermediary banks are no longer subject to attachment under Rule B. In another recent decision, Hawknet, Ltd. v. Overseas Shipping Agencies, No. 09-2128-cv, 587 F.3d 127, 2009 WL 3790654 (2d Cir. Nov.13, 2009), we held that our decision in Shipping Corp. of India applies retroactively. Accordingly, we VACATE the District Court’s order and REMAND the matter to the District Court with instructions to enter an order to show cause why it should not dismiss the complaint for lack of personal jurisdiction in light of these recent decisions.
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SUMMARY ORDER
This multi-district litigation involves wrongful death claims brought by surviv*587ing family members of passengers of Gol Linhas Inteligentes S.A. Boeing 737-800 Flight 1907, which crashed in the Amazon rainforest on September 29, 2006, killing all on board. Plaintiffs in this action are Brazilian citizens and residents. The decedents they represent were also Brazilian citizens and residents at the time of their death. Plaintiffs appeal the grant of a motion to dismiss on grounds of forum non conveniens, entered on July 2, 2008. In re Air Crash Near Peixoto De Azeveda, Brazil, on Sept. 29, 2006, 574 F.Supp.2d 272, 275 (E.D.N.Y.2008). We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
For substantially the reasons stated in the decision of the district court, we affirm. It is by now well-established that “[t]he fomm non conveniens determination is committed to the sound discretion of the trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). We will reverse “only when there has been a clear abuse of discretion.” Id. When, as in this case, the “court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Id.
The district court properly determined the degree of deference owed to Plaintiffs’ choice of forum. In re Air Crash Near Peixoto, 574 F.Supp.2d at 282; see Iragorri v. United Techs. Corp., 274 F.3d 65, 71-72 (2d Cir.2001). The district court was well within its discretion in concluding that Brazil is an available and adequate alternative forum. In re Air Crash Near Peixoto, 574 F.Supp.2d at 284-85; see Piper, 454 U.S. at 255 n. 22, 102 S.Ct. 252. Finally, the district court thoroughly assessed the private and public interest factors attending a forum non conveniens determination, and properly found that “the important factors of lack of jurisdiction in this forum over potentially liable parties and the lack of compulsory process over witnesses and evidence in Brazil, together with other considerations, swing the balance sufficiently to make this forum genuinely inconvenient and a Brazilian forum significantly preferable.” In re Air Crash Near Peixoto, 574 F.Supp.2d at 289 (internal quotation marks omitted); see also Iragorri, 274 F.3d at 73-75.
The district court made its dismissal on forum non conveniens grounds subject to several conditions enumerated in its opinion. In re Air Crash Near Peixoto, 574 F.Supp.2d at 290. In addition to those conditions, which remain operative, Defendants have agreed that the Pilot Defendants, Joseph Lepore and Jan Paul Paladi-no, will submit to videotaped depositions in the United States, and that Defendants will not object in Brazilian proceedings to the admissibility of those depositions on the basis, of either (1) the fact that the depositions were conducted in the United States, or (2) the format of the testimony.
The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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OPINION
PER CURIAM.
In November 2008, Leo Schweitzer filed a sixty-four-page complaint against the United States and countless other persons and entities. Though its contents are not entirely clear, it appears that Schweitzer primarily sought redress for an alleged breach of a plea agreement related to his most recent conviction, and perhaps all of his prior criminal convictions as well.1 Schweitzer alleged violations of his “First, *602Fourth, Fifth, Sixth, Eight[h], Ninth, Tenth, Thirteen, and Fourteenth Amendment ]” rights, as well as violations of the Federal Tort Claims Act (“FTCA”). The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for which relief maybe granted. Schweitzer appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Having granted Schweitzer leave to proceed in forma pauperis, we must dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) if it is frivolous, i.e., if it has no arguable basis in law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
At the outset, we note our disagreement with the District Court’s determination that Schweitzer’s claims are barred by the FTCA’s applicable statute of limitations. The claimant is required by the FTCA to file an administrative tort suit within two years of the claim’s accrual. See 28 U.S.C. § 2401(b). Here, Schweitzer apparently filed an administrative tort suit on April 24, 2006. (Dist. Ct. Op. at 8.) Schweitzer’s claims could have accrued in late 2004, the last year in which he complains that government misconduct occurred concerning the alleged breach of a plea agreement. (Dist. Ct. Op. at 3-4) (“Plaintiff sets forth a plethora of alleged violations which appear to have occurred over a time period spanning from 1984 through 2004). Thus we cannot say for sure whether Schweitzer’s claims, if they were in fact proper claims under the FTCA, were timely. We will not remand for further development of the record, however, because we dispose of this appeal on other grounds. Cf. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc).
Schweitzer’s claims are, in effect, collateral attacks on his convictions. As the District Court observed, Schweitzer’s claims are premised on the alleged breach of a plea agreement, his alleged actual innocence of any criminal wrongdoing, and the alleged unreasonableness of his sentence for the crimes of conviction. Such attacks must be brought via habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). We note, moreover, that Schweitzer has already unsuccessfully attempted to end or shorten his term of imprisonment through various means over the years, including 28 U.S.C. § 2255, 28 U.S.C. § 2241, Federal Rule of Civil Procedure 60(b), and a petition for a writ of coram nobis.2 It appears, then, that this complaint is just his latest attempt at circumventing AEDPA’s stringent gatekeep-ing requirements for second or successive § 2255 motions. As a result, it would have been pointless for the District Court to construe the complaint as a § 2255 motion because the District Court would have lacked jurisdiction to entertain it without our having authorized its filing. See 28 U.S.C. § 2244. Accordingly, because this appeal presents no arguable legal issue, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).3
. Details of Schweitzer's extensive criminal history are set forth in United States v. Schweitzer, 454 F.3d 197 (3d Cir.2006).
. Indeed, many of the claims made in Schweitzer’s complaint are duplicative of claims previously rejected by this Court.
. Our decision to dismiss the appeal pursuant to § 1915(e)(2)(B) has significant consequences, because it will mean that Schweitzer has had at least three actions or appeals dismissed under that provision during his incarceration. See also Schweitzer v. United States, 215 Fed.Appx. 120 (3d Cir.2007); Schweitzer v. United States, No. 08-cv-02146, dkt #26 (M.D.Pa. Aug. 7, 2009); Schweitzer v. All Territories & Insular Possessions, No. 06-cv-0965, dkt #34 (M.D.Pa. Apr. 26, 2007). Thus, while imprisoned, Schweitzer will from *603now on be prohibited from bringing civil suits unless he either pays the fees in full up-front or makes a showing that he is "under imminent danger of serious physical injury.'' 28 U.S.C. § 1915(g).
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OPINION
PER CURIAM.
William F. Davis, III, a Delaware inmate, appeals from the District Court’s final judgment in this pro se action under 42 U.S.C. § 1983. For the reasons that follow, we will summarily affirm.
I.
Davis filed this suit in the United States District Court for the District of Delaware asserting violations of his Eighth Amendment rights while incarcerated on the mental health tier, or “ID Pod,” at the Howard R. Young Correctional Institution (“HRYCI”). In May 2004, an inmate on the same unit, Brian Casey, pushed or shoved Davis in the face on two occasions during basketball games played with numerous other inmates in the yard. Davis asserts that two Corrections Officers witnessed these incidents but failed to report them and took no action against Casey. Davis alleges that he had on several occasions told defendant Deborah Muscarella, his counselor on the mental health tier, that Casey had been falsely calling Davis a “child molester.” On May 31, 2004, about two weeks after the basketball shoving incidents, Casey and Davis were in the dining hall waiting in the breakfast line for second servings. Casey tried to get ahead of Davis in line and once again called Davis a child molester. After the two argued, Davis turned away, at which time Casey punched Davis in the face, fracturing his jaw. In this suit, Davis claims that certain of the named defendants failed to protect him from Casey’s assault, and that certain defendants were indifferent to his medical needs by delaying treatment for his broken jaw.
The District Court granted a motion to dismiss filed by defendant First Correctional Medical (“FCM”), explaining that Davis never mentions FCM in his complaint or amended complaint, and that there is no allegation even suggesting that FCM violated Davis’s rights. The District Court also dismissed defendants Dr. Boston and Brian Casey (the alleged inmate assailant) because Davis failed to respond to an order to show cause as to why these *605defendants should not be dismissed for failure to provide information to allow timely service of process.
Defendants Williams, Davies, Emig, and Mays 1 filed a motion for summary judgment, in which defendant Way joined. The District Court entered summary judgment in favor of these defendants, holding as follows: (i) claims against these prison officials in their official capacities are barred by Eleventh Amendment immunity; (ii) Warden Williams was not personally involved in the alleged wrongs and cannot be held liable under § 1983 on a theory of respondeat superior; (iii) Davies and Mays, the Corrections Officers who allegedly witnessed the basketball shoving incidents in the yard, cannot be said to have known of or disregarded an excessive risk to Davis’s safety; (iv) Davis fails to show that any defendant, including Nurse Jeremy2 and Corrections Officer Way, acted with deliberate indifference based on the eleven-day gap between the date of injury and the date surgery was performed to repair his broken jaw; and (v) the claim against Emig, a Captain/Facility Investigator charged with investigating serious incidents at HRYCI, for allegedly failing to ask the Attorney General to prosecute Casey fails given the absence of a duty to seek prosecution of an inmate who injures a fellow inmate. The District Court granted Davis’s motion for leave to file an amended complaint against the lone remaining defendant, Musearella.
Rather than amend, Davis moved for summary judgment on his failure to protect claim. Musearella also moved for summary judgment. The District Court granted Muscarella’s motion, concluding that her alleged failure to protect Davis amounts, at most, to negligence, not a deliberate indifference to a serious risk to Davis’s safety. Davis timely filed this appeal.
II.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary of the District Court’s orders entering summary judgment. See Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.2003). We view the underlying facts, and all reasonable inferences therefrom, in a light most favorable to the non-movant. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005). After a careful review of the record, we will summarily affirm the District Court’s judgment in accordance -with Third Circuit Internal Operating Procedure Chapter 10.6.3
III.
a. Failure-to-protect claim
As the District Court fully explained, “[a] prison official’s deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “Deliberate indifference can be shown when a prison official knows of and disregards an excessive risk to inmate health or safety.” Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir.1997) (quotation marks omitted). “[T]o survive summary judgment on an Eighth Amendment claim asserted under 42 U.S.C. § 1983, a plaintiff is required to produce sufficient evidence of (1) a substantial risk of serious harm; (2) the de*606fendants’ deliberate indifference to that risk; and (3) causation.” Id. at 746.
Davis failed to produce sufficient evidence to survive summary judgment on his claims that Mays, Davies, and Muscarella acted with deliberate indifference to his safety. Davis alleges that Mays supervised the first basketball game in which Casey shoved Davis’s face, and that Davies supervised the second game. Davis’s claims against these two defendants are based on their having witnessed the alleged shoving incidents. Davis concedes that both basketball games were aggressively played by all involved, and Davis himself considered the pushing incident in the first game to be inconsequential. Davis suffered no injury in either incident, and, clearly, any alleged fear of harm from Casey was not such that it prevented Davis from voluntarily participating in basketball games with Casey. There is no evidence that Casey called Davis a child molester during either game, and no evidence that Mays or Davies knew prior to the basketball games that Casey had called Davis a child molester.4 On this record, viewing the evidence in a light most favorable to Davis, a reasonable jury could not conclude that Mays or Davies knew of, or consciously disregarded, an excessive risk to Davis’s safety.
As to defendant Muscarella, a mental health counselor at HRYCI, Davis contends that he told Muscarella on several occasions prior to the basketball shoving incidents that Casey had accused him of being a child molester. According to Davis, Muscarella advised that “she was basically going to take care of it ... don’t worry about it.” There is, however, no evidence that Davis ever complained to Muscarella about a specific threat of harm, and it is undisputed that Davis never requested protection. Further, despite Casey’s presence, Davis chose to remain housed' in the ID Pod for mental health treatment when he could have sought a transfer from the unit at any time.5 In addition, Davis does not dispute that he had a history of horseplay and altercations with other inmates, and that in the past he had displayed an ability to defend himself, not a vulnerability to attack. Muscarella had counseled Davis on ways to avoid confrontation.
We agree with the District Court that, at most, Muscarella’s actions might reflect negligence in failing to protect Davis from an environment in which he had been falsely labeled a child molester and had encountered an inmate (Casey) who had displayed hostility toward Davis. But this evidence does not reflect that Muscarella knew of and disregarded a substantial risk of serious harm to Davis. See Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (“It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clausef.]”). Muscarella flatly denies ever being aware of a substantial risk of harm to Davis, or of being indifferent to his need for protection, and the evidence of record does not support a reasonable inference to the contrary. Accordingly, summary judgment was appropriately entered.
b. Claim based on medical needs
After the altercation with Casey in the dining hall, defendant Way took Davis *607to the infirmary, where he was examined by Nurse Jeremy. Davis was given gauze for his bleeding, as well as Motrin and ice, and returned to his unit. Davis was again examined by a nurse later the same day. At the time, Davis remained able to open his mouth and talk. The next day, when Davis was again examined, he was unable to open his mouth and his jaw was swollen. Davis was taken that day to a hospital for an x-ray, which revealed a “bilateral mandibular fracture.”
Davis was returned to HRYCI and housed in the infirmary for three days before returning to his cell. After five days in his cell, Davis returned to the infirmary, and, after a total of eleven days following the assault, he was taken to an outside hospital where surgery was performed to repair his jaw. Davis spent the night at the hospital, and then another three weeks in the prison infirmary upon his return.
At bottom, Davis complains about the length of time between the date of injury and the date of the surgery on his jaw. “To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.2009). “Deliberate indifference may be shown by intentionally denying or delaying medical care.” Id. (quotation marks omitted). “Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n. 2 (3d Cir.1979) (quotation marks omitted). We agree with the District Court that, as a matter of law, Davis failed to raise a claim that defendants intentionally delayed appropriate care, or that a reasonable jury could conclude that defendants’ actions amounted to deliberate indifference to Davis’s medical needs. Consequently, the District Court properly entered summary judgment on this claim.6
IV.
Davis’s remaining claims were properly dismissed for the reasons fully explained by the District Court. Because we conclude that this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, the District Court’s judgment will be affirmed.
. The names of defendants Emig and Mays are misspelled in the case caption as "Em-mit” and “Mayes.”
. Nurse Jeremy's name is misspelled in the case caption as "Jeremey.” The docket also reflects that the United States Marshal's service of process on Jeremy was returned unex-ecuted because Jeremy no longer worked at HRYCI.
.We have fully considered Davis's "Informal Brief” in reaching this disposition.
. Although Davis asserted at deposition that Mays was aware that Casey had been calling Davis a child molester, Davis could not recall when he told Mays, and there is no evidence of record that he told Mays prior to the first basketball shoving incident.
. Davis contends that he suffers from learning disabilities, depression, and bipolar disorder, but he testified that he was taking medication for his mental health issues at the time of the incidents at issue in this case.
. We note that defendants also argued before the District Court that Davis failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). Although the District Court expressly declined to address this issue, we find the defendants' argument well-taken. The record is undisputed that Davis filed a single grievance regarding the altercations with Casey, indicating that he “would like someone to look into this matter to see why Officer Daves [sic] and Maze [sic] didn’t do anything to Mr. Casey and why this Incident wasn't documented.” Davis also stated that he “would like to press charges on Casey.” Davis raised no claim that the medical treatment for his broken jaw was inadequate. His grievance was denied at the first level of review by the Institutional Grievance Chair, who advised that Davis could not seek disciplinary action against staff and should direct his complaint to the staff member’s supervisor. Davis was also told that the action he requested was inappropriate or not complete, and that he must make an actual request. Davis did not file a new grievance or appeal the ruling given because, he testified, he was "satisfied with the answer they gave me.” Because Davis clearly did not exhaust administrative review on the claims raised in this suit, his suit was subject to dismissal for that reason, as well.
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OPINION
PER CURIAM.
Shawn Wright appeals the District Court’s order granting appellees’ motions to dismiss. For the reasons below, we will affirm the District Court’s order.
The procedural history of this case and the details of Wright’s claims are well known to the parties, set forth in the District Court’s thorough opinion, and need not be discussed at length. Briefly, Wright asserted that the Drug Enforcement Agency (DEA) and Agent Evans forced him to work with the Salem County Prosecutor’s Office (SCPO) even after his identity as an informant was exposed and allowed the SCPO to prosecute his drug suppliers in violation of an oral agreement that they would be prosecuted in federal court. Wright argued that he was identified as an informant in newspaper articles and forced to continue working as an informant even after it was clear that the investigations were dangerous. Appellees filed motions to dismiss, and the District Court appointed Wright counsel. After the District Court granted the motions to dismiss, Wright filed a pro se notice of appeal.
Because appellee Spinelli has dismissed his cross-claims, Wright’s notice of appeal has ripened, and we have jurisdiction under 28 U.S.C. § 1291. Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983)(premature notice of appeal becomes effective upon dismissal of outstanding cross-claims). We exercise plenary review over the District Court’s order granting appellees’ motions to dismiss. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.1998).
Wright did not give any details on the investigations he was involved in or how he was placed in danger. He does not explain how he was “forced” to continue working as an informant alter his identity *610was exposed. We note that while represented by counsel at his plea hearing in December 2004 and his sentencing in January 2006, he made no complaints of any such force. Wright presumably continued to cooperate in the hopes of receiving a sizable downward departure. And he did. As a result of his cooperation, Wright was sentenced to six years in prison, far below the guidelines sentence of thirty years to life.
As for any agreement to prosecute his drug suppliers in federal court, no citizen has a right to insist on the initialization of criminal proceedings. Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Wright does not allege that he was housed in the Salem County jail at the same time as the drug suppliers; he alleged only that he had “strong ties and co-defendants” there.
Wright’s claims concerning the July 2004 and October 2004 newspaper articles are untimely.1 While Wright argued in the District Court that his claims were brought within the six-year statute of limitations for contract claims, he also argued that he had established a constitutional violation. Claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). We have held that New Jersey’s two-year limitations period on personal injury actions, N.J.S.A. 2A:14-2, applies to civil rights claims under § 1983. Cito v. Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir.1989). Thus, the complaint, filed in August 2007, was untimely with respect to the July and October 2004 articles.
In the article published on August 5, 2005, the author noted that the drug suppliers had been indicted and one had been the supplier for Wright who was awaiting sentencing. The SCPO was named as the source for the fact that the drug suppliers were arrested at the rest stop where they normally met Wright. While the complaint is timely as to the publication of the August 5, 2005 article, the allegations are not sufficient to state a claim.
A state-created danger claim has four elements. First, Wright must show that the harm caused was foreseeable and direct. Next, appellees must have acted with a degree of culpability that shocks the conscience. Wright must have been a foreseeable victim, and, finally, appellees must have affirmatively used their authority to create a danger to Wright. Walter v. Pike County, Pa., 544 F.3d 182, 192 (3d Cir.2008).
Despite Wright’s allegations to the contrary, the August 2005 article did not expose Wright’s location or give specific details concerning his actions as a confidential informant. The author of the article merely identified one of the men arrested as the drug supplier for Wright who was awaiting sentencing in federal court. Wright appears to argue that the drug suppliers did not know his real name; thus, the publication of his name put him in danger. Wright has not alleged any actual harm he has suffered from the disclosure of his identity. He does not allege that he has received any threats from the drug suppliers. Wright has also not made any specific allegations supporting his contention that appellees acted with a degree of culpability that *611shocks the conscience. He has alleged nothing indicating that the disclosure of his name to the press was anything more than negligent. Moreover, Wright agreed to testify at trial if needed; thus, the potential exposure of his identity was anticipated by the plea agreement.
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by the District Court, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.
. In the July 2004 article, it is noted that appellee Spinelli received an award for his police work, including dismantling Wright’s drug organization. In an October 7, 2004, article, it was reported that Wright "had provided information to authorities implicating his former associates.”
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Lisa Mirabile appeals from the District Court’s order affirming a final administrative action of the Commissioner of Social Security (the “Commissioner”). The District Court affirmed the Commissioner’s decision that Mirabile was not disabled and thus not entitled to disability insurance benefits under Title II or Supplemental Security Income under Title XVI of the Social Security Act. The Commissioner’s decision was based on the decision of Administrative Law Judge (“ALJ”) John Farley on December 21, 2006, which found that Mirabile, but for her substance abuse disorder, retained the residual functional capacity (“RFC”) to perform her past relevant work and so was not disabled. Mira-bile appeals the District Court’s order on the grounds that the ALJ’s finding was not supported by substantial evidence.
The ALJ’s finding was supported by substantial evidence, and so we will affirm.
I.
On October 27, 2004, Mirabile filed a disability benefits claim and an SSI application, in which she alleged disability due to a bipolar disorder, depression, and a social anxiety disorder, with an onset date of April 1, 2003.1 The Commissioner denied the disability benefits claim and the SSI application initially on January 31, 2005, and upon reconsideration on April 6, 2005. Mirabile then requested a hearing before an ALJ. A hearing was held before ALJ Farley on August 2, 2006. ALJ Farley concluded that Mirabile was not disabled because he found that but for her substance abuse disorder, she retained the RFC to perform her past relevant work as a motorcycle salesperson, a job she had held from 1992 to 1999. The ALJ’s decision became the Commissioner’s final decision on May 5, 2007, when the Appeals Council denied Mirabile’s request for review of the ALJ’s decision.
II.
An individual may obtain review in federal district court of the Commissioner’s final decision if the decision was made after a hearing to which the individual was a party. 42 U.S.C. § 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the ALJ’s application of the law, and review the ALJ’s findings of fact to determine if they are supported by “substantial evidence.” Paulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir.2007). “Substantial evidence” need not be a preponderance of the evidence, but it must be “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 *621U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).
The statutory term “disability” indicates an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine if a person is “disabled,” the Commissioner applies a five-step sequential analysis set forth in 20 C.F.R. §§ 404.1520 and 416.920. If a finding of disability or non-disability can be made at any step of the sequential analysis, the claim will not be reviewed further. 20 C.F.R. §§ 404.1520(a) and 416.920(a). Only the first four steps are relevant here.
At step one, the Commissioner will find non-disability unless the claimant shows that she is not engaged in any “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is not engaged in substantial gainful activity, then the Commissioner will find non-disability at step two unless the claimant shows that she has a “severe” impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c) and 416.920(c). If a severe impairment or combination of impairments is present, the Commissioner will consider at step three whether the claimant has an impairment or combination of impairments which meets or medically equals any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the claimant’s impairment does meet a listed impairment, then the claimant is presumptively disabled. If the claimant’s impairment does not meet a Listed impairment, then the Commissioner assesses the claimant’s RFC to be used in the fourth and fifth steps of the evaluation. 20 C.F.R. §§ 404.1520(a)(4),(e) and 416.920(a)(4),(e). At step four, the Commissioner will find non-disability unless the claimant demonstrates that given her RFC she is unable to perform any of her past relevant work. 20 C.F.R. §§ 404.1520(e),(f) and 416.920(e),(f).
III.
Here, the ALJ applied the standard five-step analysis for evaluating disability claims. With regard to step one, the ALJ found that Mirabile had not engaged in substantial activity since her alleged onset of disability date. With regard to step two, the ALJ found that Mirabile’s bipolar disorder and substance abuse disorder were severe impairments. With regard to step three, the ALJ determined that her bipolar disorder and substance abuse disorder met Listings 12.04A(3)/B(1,2) (bipolar disorder resulting in marked restriction of activities of daily living and marked difficulties in maintaining social functioning) and 12.09B (substance addiction disorder leading to depressive syndrome). 20 C.F.R. Part 404, Subpart P, Appendix 1.
However, at step three, the ALJ also determined that Mirabile could not be considered disabled because her substance abuse was a contributing factor that was material to her having met the Listings. In cases involving drug or alcohol addiction, “[a]n individual shall not be considered to be disabled ... if alcoholism or drug addiction would (but for this subpara-graph) be a contributing factor material to the Commissioner’s determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). In assessing Mirabile’s RFC for purposes of step four and five, the ALJ found that if Mirabile “stopped the substance use, [she] would have the residual functional capacity to perform the basic mental demands of competitive, remunerative work on a sustained basis.” (Joint App. 18.) Based on this finding, at *622step four the ALJ concluded that Mirabile would be able to perform past relevant work as a bookkeeper, parts manager, and salesperson, and so found that Mirabile was not disabled.
The issue on appeal, therefore, is whether substantial evidence supports the ALJ’s finding that Mirabile’s substance abuse problems were a contributing factor material to the disability determination. It is clear that there is substantial evidence to support the findings both that Mirabile had a substance abuse disorder during the relevant period and that her substance abuse was a factor that was material to her impairments meeting the Listings.
The Social Security Administration advises adjudicators assessing whether an individual’s substance abuse problems were a factor material to the disability determination that “[t]he most useful evidence ... is that relating to a period when the individual was not using drugs/alcohol.” Social Security Administration, Questions and Answers Concerning DAA from the 07/02/96 Teleconference, No. EM-96200 (Aug. 30, 1996). There is substantial evidence in the record that demonstrates that when Mirabile is not abusing drugs or alcohol she is capable of working. All three reports completed by doctors that are in the record support this finding, and there is no medical evidence in the record that suggests otherwise.
First, from March 2nd to March 9th, 2004, Mirabile spent a week at Riverview Medical Center, during which time she was seen by Dr. Mohammed Hyderi, a staff psychiatrist. He reported that Mirabile was “very deep into drugs ... polysub-stance dependent and every chance she gets she uses the drugs ... the patient has had problems with substance abuse since age 13 to 18.” (Joint App. 78.) He also noted, however, that after going into a rehabilitation facility at eighteen she “came out very successfully” and followed that time in the rehabilitation facility with “7 years of sobriety with financially and socially successful life.” (Joint App. 78.) Dr. Hyderi’s report supports the finding that Mirabile’s substance abuse was a material factor to the disability determination. He even concludes his report by noting that “when she is in the good, sober periods, she is very successful and thoughtful and productive.” (Joint App. 79.)
Second, on March 15, 2004, Mirabile was admitted to CPC Behavioral Health Care (“CPC”) for an “intensive outpatient” treatment program for substance abuse issues. Her patient type was listed as “Alcohol/Drug Abuser.” (Joint App. 133.) Her “primary” drug was listed as “Marijuana/Hashish” and the admittance report states that she uses her primary drug daily. (Joint App. 135.) Her “secondary” drug is listed as “Crack” and the report states that she uses it “[l]ess than weekly.” (Joint App. 135.) The admission report also notes that Mirabile had been treated in an emergency room for alcohol or drug problems in the past 30 days. (Joint App. 136.) After this initial admission to the treatment program, she spent the next seven months in outpatient care through CPC. Mirabile was discharged from CPC in November 2004, because, according to CPC’s Discharge Report, “[n]o continuing substance abuse treatment [was] needed.” (Joint App. 138.) In December 2004, at the end of her period of outpatient treatment through CPC, she was examined by Dr. Hugh Moore, licensed psychologist. Dr. Moore noted that Mirabile had various “symptoms of depression and anxiety.” (Joint App. 100.) But he also found that Mirabile was basically competent to “relate to and interact appropriately with others” and that her problems were not “significant enough to interfere with the claimant’s ability to function on a daily basis.” (Joint App. 102.) The fact that Dr. Moore *623reported that Mirabile’s mental health issues did not prevent her from interacting appropriately and functioning on a daily basis — after she had gone through significant drug rehabilitation — provides support for the finding that Mirabile’s substance abuse was a material factor to the initial disability determination.
Finally, the Psychiatric Review Technique and Mental Residual Functional Capacity Assessment completed by Dr. Janice Drucker in January of 2005, also shortly after the seven-month stretch of drug rehabilitation, concludes in a similar fashion. Dr. Drucker concludes that Mir-abile is “not significantly limited” in any of the twenty different abilities evaluated by the Assessment. (Joint App. 104-05.) Dr. Drucker’s report also provides support for the finding that Mirabile’s substance abuse was a material factor to the initial disability determination.
These three doctor reports are the only evidence of record regarding Mirabile’s level of disability when not using drugs and/or alcohol, and all three provide substantial support for the finding that her drug abuse is material to the disability determination. No medical reports in the record suggest otherwise. These reports also support the ALJ’s finding that, absent her substance abuse, Mirabile retained the RFC to perform her past relevant work. Given this, it seems clear that there was “substantial evidence” to support the ALJ’s determination.
IV.
For the reasons set forth above, we will AFFIRM the Order of the District Court.
. The District Court opinion misstates the alleged onset date as April 1, 2004. (Dist.Ct. Op.2.)
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Douglas Kennedy appeals following the District Court’s grant of his motion for a new trial on four counts of conviction. Kennedy argues that he was entitled to a new trial on all eight counts of conviction, and that joinder of two of the counts in the indictment was improper. The government cross-appeals contending that it was error to grant a new trial on any count.
On November 9, 2004, after conducting surveillance and speaking with a cooperating witness, Drug Enforcement Agency agents arrested Kennedy as he returned to his home in his Lincoln Navigator. Kennedy consented to a search of his residence, the Navigator, and a Cadillac, orally and in writing. Agents searched his residence and found ammunition, firearms, cash, a phone that had been used to communicate with the cooperating witness, and approximately 9 grams of crack cocaine, which Kennedy allegedly admitted was his. Nothing illegal was found in the Cadillac, but a gun and heroin were found in the Navigator. Over a year later, on November 23, 2005, an employee of a private contractor operating a storage facility used by the United States Marshal’s Service, found 103.9 grams of heroin and a handgun in a secret compartment in the Cadillac while doing routine maintenance on the car. Previously, the government had searched the Cadillac using drug sniffing dogs and the same employee had conducted routine maintenance on the car numerous times, without finding any contraband.
On May 23, 2006, a Second Superseding Indictment was returned against Kennedy alleging the following counts:
Count I: Conspiracy to distribute and possess with intent to distribute a controlled substance, 21 U.S.C. § 846 (in part for drugs found in Cadillac) -
Count II: Possession with intent to distribute heroin, 21 U.S.C. § 841 and 18 U.S.C. § 2 (drugs found in Navigator)
Count III: Possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (gun in Navigator)
Count IV: Possession with intent to distribute heroin, 21 U.S.C. § 841 and 18 U.S.C. § 2 (drugs in Cadillac)
Count V: Possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (gun in Cadillac)
Count VI: Possession with intent to distribute cocaine base, 21 U.S.C. § 841 and 18 U.S.C. § 2 (crack found at Residence)
Count VII: Possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (gun in Navigator)
*635Count VIII: Possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (gun in Cadillac)
On July 28, 2006, Kennedy was found guilty on all eight counts following a four-day jury trial. Numerous law enforcement officers testified about the surveillance, the search of the house and cars, Kennedy’s statements to law enforcement, and the contraband found in the Navigator and the Cadillac. Defense counsel attacked the government’s initial failure to find the contraband in the Cadillac and the year-long passage of time before it was found in his opening statement, his summation, and during his cross-examination of witnesses.
On October 24, 2006, Kennedy filed a pro se motion for new counsel, which the District Court granted on November 2, 2006. On November 15, 2007, Kennedy’s new counsel filed a motion for a new trial, arguing that the untimeliness of that motion was due to excusable neglect. The motion for a new trial contended that: 1) trial counsel was ineffective for failing to challenge the admissibility of the evidence found as a result of the search of the Cadillac; 2) two counts of the Second Superseding Indictment were improperly joined; and 8) the government improperly charged only one conspiracy despite offering proof of numerous conspiracies. The government opposed the motion based on its untimeliness and its substance.
On August 21, 2008, the District Court held oral argument on Kennedy’s motion for a new trial and a sentencing hearing. The District Court considered the merits of the motion for a new trial after finding that there was excusable neglect due to miscommunication, or no communication, between Kennedy and his trial counsel after the trial. The District Court dismissed Kennedy’s improper joinder argument because the joined counts were similar drug trafficking charges and dismissed Kennedy’s argument regarding the conspiracy charge because the government “alleged and charged only one conspiracy.” Kennedy Appendix (“KA”) 65. The District Court then decided that Kennedy’s trial counsel was ineffective for failing to challenge the admissibility of the evidence obtained from the search of the Cadillac a year after Kennedy’s arrest and that this clearly prejudiced Kennedy.
The District Court granted Kennedy a new trial on counts I, IV, V, and VIII of the Second Superseding Indictment and sentenced Kennedy on the remaining four counts (II, III, VI and VII) to 180 months’ imprisonment. Following these rulings, Kennedy filed a notice of appeal and the government filed a notice of cross-appeal.
I. New Trial as to Four Counts
Kennedy argues that his trial counsel’s ineffective assistance poisoned his entire trial and therefore, the District Court erred in granting a new trial as to only four counts. The District Court’s decision to grant Kennedy a new trial on four counts under Federal Rule of Criminal Procedure 33 is reviewed for abuse of discretion; a District Court abuses its discretion by definition when it makes an error of law. United States v. Kelly, 539 F.3d 172, 181 (3d Cir.2008).
The District Court found that Kennedy’s trial counsel was ineffective in failing to challenge the admissibility of the evidence found in the Cadillac, and granted his motion for a new trial on the four counts arising out of that evidence. Kennedy argues that his trial counsel’s ineffectiveness infected his entire trial with constitutional errors so that a new trial was warranted as to all eight counts of conviction. Kennedy does not demonstrate how these errors affected the other four counts, nor does he present any case law to substanti*636ate his claim.1 Therefore, we cannot conclude that the District Court abused its discretion in granting Kennedy a new trial on only four out of eight counts.
The government contends that the District Court erred in granting Kennedy’s motion for a new trial by 1) allowing Kennedy’s tardy motion for a new trial based on excusable neglect, 2) ruling on a ground that was never raised by Kennedy in his motion for a new trial, 3) granting a new trial on four counts based on trial counsel’s decision not to bring a meritless motion, and 4) never explicitly finding that Kennedy suffered prejudice and assuming that Kennedy suffered prejudice based on his potential sentence.
A. Excusable Neglect
Under Federal Rule of Criminal Procedure 45(b)(1)(B), a court may extend the time prescribed under Federal Rule of Criminal Procedure 33(b)(2) due to excusable neglect. Excusable neglect is an equitable determination that should take account of relevant circumstances, including danger of prejudice, the length of the delay, the delay’s impact on judicial proceedings, the reason for the delay, whether the movant had control over the delay, and whether the movant acted in good faith. In re Cendant Corp. PRIDES Litig., 234 F.3d 166, 171 (3d Cir.2000) (citing Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).2 The Government concedes that it did not challenge the District Court’s authority to extend the time period for Kennedy to file a motion for a new trial, although it did oppose that motion as untimely because it was filed almost sixteen months after Kennedy’s conviction.3 The District Court did not abuse its discretion in allowing the motion due to excusable neglect after finding that there was little or no communication between Kennedy and his trial attorney after the trial and *637Kennedy’s trial attorney had “abandoned him after the trial.” KA. 46, 54, 64.
B. Ruling on Grounds not Raised by Kennedy in his Motion for a New Trial
A trial judge may not grant a new trial on grounds not raised by the defendant. United States v. Wright, 363 F.3d 237, 248 (3d Cir.2004). In his motion for a new trial Kennedy’s sentencing counsel argued that trial counsel was ineffective in not filing any pre-trial motions or adequately challenging the evidence found in the Cadillac a year after that ear was seized by the government. The government faults sentencing counsel for not specifically describing the issue as one involving “ehain of custody.” However, the District Court did not clearly err in considering the issue notwithstanding counsel’s failure to characterize it as an argument regarding the “chain of custody,” because Kennedy’s argument was substantially similar.4
C. Ineffective Assistance of Counsel
We note at the outset that rarely, if ever, should an ineffectiveness of counsel claim be decided in a motion for a new trial or on direct appeal. “[T]his Court has expressed a preference that ineffective assistance of trial counsel claims be brought as collateral challenges under 28 U.S.C. § 2255, rather than as motions for new trials or on direct appeal.” United States v. Chorin, 322 F.3d 274, 282 n. 4 (3d Cir.2003) (citing United States v. DeRewal, 10 F.3d 100, 104-5 (3d Cir.1993) (stating that a Rule 33 motion is not the preferred vehicle for asserting ineffectiveness of counsel claims)); see also United States v. Ugalde, 861 F.2d 802, 809 (5th Cir.1988) (“Defendants prejudiced by ineffective assistance of counsel have a ready remedy. They may mount a collateral challenge by a federal habeas petition as allowed by 28 U.S.C. § 2255. That mechanism, rather than a new trial, seems best to accommodate the interests in finality and fairness with respect to ineffective assistance of counsel claims.”). Habeas proceedings offer the opportunity for the development of a factual record. No such record was developed here in connection with the motion for a new trial. We do not endorse the procedure followed by the District Court, but will proceed to examine what did occur here in connection with the motion for a new trial.
Under Stnekland v. Washington, to grant a new trial based on ineffective assistance of counsel, the District Court must find that (1) counsel’s performance was deficient and (2) that the defendant was prejudiced by this performance. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The District Court’s ruling on ineffective assistance of counsel is reviewed de novo. United States v. Cross, 308 F.3d 308, 314 (3d Cir.2002).
i. Deficient Performance
To determine whether Kennedy’s trial counsel’s performance was deficient, the District Court should have started with a weak presumption that trial counsel’s decision was strategic, which Kennedy could rebut by showing that the conduct was not part of a strategy or that the strategy was unsound. Thomas v. Varner, 428 F.3d 491, 499 (3d Cir.2005). The District Court did not start with this presumption of strategy and instead of placing the burden on Kennedy to rebut the pre*638sumption of strategy it placed the burden on the government to demonstrate that Kennedy’s trial counsel had a strategy. The District Court also denied the government’s request for an adjournment so that Kennedy’s trial counsel could testify as to his strategy. The District Court told the government that if there were relevant facts that the Court should be aware of, the government should have brought them to the Court in the proper form. KA. 51.
However, we have stated:
In cases in which the record does not explicitly disclose trial counsel’s actual strategy or lack thereof (either due to lack of diligence on the part of the petitioner or due to the unavailability of counsel), the presumption may only be rebutted through a showing that no sound strategy posited by the Commonwealth could have supported the conduct.
Thomas, 428 F.3d at 499.
The record in this case does not disclose trial counsel’s actual strategy or lack thereof, and the burden was on Kennedy to show that trial counsel’s actions could never be part of a sound strategy. The Government posits that Kennedy’s trial counsel may well have made a decision not to move to exclude this evidence as such a motion would have been meritless, and it would be more effective to attack the weight of this evidence on cross-examination.5 Kennedy did not show that trial counsel’s decision was not part of a strategy nor that there was no possible sound strategy offered by the government. Nonetheless, the District Court made its own conclusory determination that Kennedy’s trial counsel’s decision not to make a chain of custody argument “seems not to have been his strategic choice” and that there was “no apparent reason not to make this appealing argument.” KA. 67-8.
We do not find support for this conclusion in the record. Counsel’s decision not to challenge the evidence in the Cadillac based on a chain of custody argument is not a deficient performance as a matter of law. Therefore, the District Court erred in relieving Kennedy of his burden to prove ineffectiveness by rebutting the presumption of strategy. As the record stands, Kennedy failed to prove that counsel’s performance was deficient.
ii. Prejudice
To show prejudice, there must have been a reasonable probability that, but for Kennedy’s trial counsel’s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Kennedy had to show that he would have likely prevailed on the motion to exclude the evidence found in the Cadillac and that, having prevailed, there is a reasonable probability that he would not have been convicted. Thomas, 428 F.3d at 502. The District Court ruled that the government’s chain of custody over the Cadillac was “at least somewhat suspicious” (KA.66) but never actually concluded that Kennedy would have succeeded in a motion to exclude the evidence based on chain of custody.6 Instead, the District Court *639merely found that had Kennedy’s counsel been successful in this argument, the jury could not have convicted Kennedy of the crimes based on possession of the evidence found in the Cadillac. The District Court erred in failing to thoroughly reason through the prejudice prong of the ineffective assistance of counsel analysis and in determining that Kennedy was prejudiced. Accordingly, we conclude that the motion for a new trial should not have been granted.
II. Joinder
The District Court held that all of the offenses charged against Kennedy were drug trafficking offenses and thus were properly joined. Kennedy argues that counts II (possession of heroin with intent to deliver) and III (possession of a gun in furtherance of a drug trafficking crime), which both dealt with evidence found in the Navigator, were improperly joined because they were unrelated to the conspiracy charged. We make an independent determination as to whether or not joinder of counts under Rule 8 was proper; if joinder was improper, we must undertake a harmless error analysis. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir.2003). Federal Rule of Criminal Procedure 8 states that “[t]he indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged — whether felonies or misdemeanors or both — are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”
Kennedy cites no case law to support his position. Kennedy states that the evidence of contraband found in the Navigator was capable of improperly influencing and confusing the jury on the conspiracy charges and further prejudiced Kennedy by enhancing his potential sentence. The government responds that all counts were properly joined because they were based on similar conduct and implicated the same criminal statutes. Furthermore, the government contends that Kennedy cannot show any prejudice from the joinder.
Joinder is proper if the offenses charged are of a similar character. Counts II and III are identical charges to counts IV and V, except that they involve controlled substances found in different locations. We find that counts II and III were properly joined.
For the reasons set forth above we will AFFIRM the District Court’s ruling on joinder of counts II and III, REVERSE the District Court’s grant of a new trial on counts I, IV, V, and VIII, and REMAND for re-sentencing only.
. Kennedy does not use the term “prejudicial spillover.” “The concept of prejudicial spillover ... requires an assessment of the likelihood that the jury, in considering one particular count or defendant, was affected by evidence that was relevant only to a different count or defendant.” United Slates v. Hamilton, 334 F.3d 170, 181 (2d Cir.2003). Kennedy, however, does not demonstrate how the jury was prejudiced as to the remaining counts by the admission of the evidence found in the Cadillac, especially since the remaining counts also involved evidence of drugs and guns. See Hamilton, 334 F.3d at 182 ("fPlrejudicial spillover is unlikely if the dismissed count and the remaining counts were either quite similar or quite dissimilar.").
. The Cendant Corp court and Pioneer Court dealt with excusable neglect in terms of Federal Rule of Civil Procedure 60(b), but the factors for a court to consider are relevant to this case.
. The Government suggests in a footnote that, under the Supreme Court's ruling in Eberhart v. United States, 546 U.S. 12, 13, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005), the District Court lacked authority to consider Kennedy’s motion based on excusable neglect. The Court in Eberhart found that the rules setting time limits were not jurisdictional, but were inflexible claim-processing rules. Id. The Court also found that the time limit in Federal Rule of Criminal Procedure 33 is “rigid” and may not be extended except as stated in Rule 33 itself. Id. (citing Fed. Rule of Crim. Pro. 45(b)(2)). As the Second Circuit points out:
Read in conjunction with ... Rule 45(b), the defendant is ... required to file a timely motion for a new trial under Rule 33(b)(2) within the seven-day period specified.... [However], under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion for a new trial within the specified time, the court may nonetheless consider that untimely underlying motion if the court determines that the failure to file it on time was the result of excusable neglect.
United States v. Owen, 559 F.3d 82, 84 (2d Cir.2009) (citing Fed.R.Crim.P. 33 advisory committee's notes (2005 Amendments)).
. The District Court also asked Kennedy’s counsel at oral argument on the motion for a new trial if he was arguing that trial counsel was ineffective in failing to challenge the chain of custody of the evidence in the Cadillac and Kennedy's counsel answered in the affirmative.
. See Lowenfield v. Phelps, 817 F.2d 285, 291-92 (5th Cir.1987) (holding that counsel was not deficient when he made a strategic decision not to challenge the chain of custody of weapons so that he could argue that others were implicated in the murders and that the sloppy police work reflected adversely on the state's entire case).
. If Kennedy’s counsel had objected to the chain of custody of the Cadillac, it is unclear whether the government would have been able to establish chain of custody. "To establish a chain of custody, the government need only show that it took reasonable precautions to preserve the evidence in its original condition, even if all possibilities of tampering are *639not excluded.” United States v. Dent, 149 F.3d 180, 188 (3d Cir.1998).
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OPINION
PER CURIAM.
Plaintiff Dan-ell Debrew, a federal prisoner and self-described “prolific writer of *641essays,” proceeding pro se, appeals the dismissal of his civil rights complaint. We will affirm in part and vacate in part and remand for further proceedings.
According to the complaint, plaintiff, while housed in the Federal Correctional Institute (FCI) in Loretto, Pennsylvania, received an incident report on May 30, 2006, from Lieutenant Fedorka for unauthorized use of the telephone, running a business, and “[rjefusing to program.” On June 5, 2006, Unit Manager Doug Auman and Counselor Custer found plaintiff guilty of running a business and unauthorized use of the telephone.
Annum and Custer directed plaintiff to remove his webpage from the internet and prohibited his use of the mail or telephone in connection with his manuscripts and books. On June 18, 2006, plaintiff asked his mother to terminate his webpage.
Debrew was successful in his administrative appeals, and the incident report was expunged on August 9, 2006.
Plaintiff was ultimately transferred to the FCI in Petersburg, Virginia, where, on July 16, 2007, he filed this Bivens suit against Lt. Fedorka; Auman; Custer; and John Yost, the warden at the FCI in Loretto, in their individual and official capacities. Plaintiff sought injunctive and declaratory relief, as well as compensatory and punitive damages. He alleged that defendants violated his First Amendment rights by issuing him the incident report, ordering him not to use the mail or telephone, directing him to remove his web-page, and sanctioning him.
After screening the case pursuant to 28 U.S.C. § 1915A and before any pleadings had been filed by defendants, a magistrate judge issued a report and recommended that the complaint be dismissed. The magistrate judge detei*mined that the plaintiffs claims for equitable relief were moot, punitive damages were inappropriate, and that, among other things, the defendants’ qualified immunity precluded the award of other damages.
The district judge adopted the report, dismissed the plaintiffs complaint, and denied reconsideration. Plaintiff timely appealed.
Our review of the record convinces us that the District Court properly determined that the claims for injunctive and declaratory relief became moot when plaintiff was transferred from the FCI in Loretto to the FCI in Petersburg. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir.2003). In addition, no claims could properly be brought against defendants in their official capacities. See Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir.2007) (explaining that a “Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity” (quoting Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987))).
We conclude, however, that the case was not made ripe for a ruling on whether qualified immunity precluded plaintiff from suing defendants as individuals. “[T]he qualified-immunity defense shields government agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir.2006) (quoting Behrens v. Pelletier, 516 U.S. 299, 305, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)).
It is well established that “[incarceration ... necessitates that many rights and privileges, including rights derived from the First Amendment, be eliminated or curtailed.” Abu-Jamal v. Price, 154 F.3d 128, 132-33 (3d Cir.1998). In order to maintain security, prisons may limit an inmate’s speech if it “incite[s] other prison*642ers” or involves “escape plans.” Id. at 134; see also Nasir v. Morgan, 350 F.3d 366, 368-76 (3d Cir.2003) (finding constitutional a prison’s regulation prohibiting inmates from corresponding with other inmates and former inmates without written approval of the prison’s superintendent).
However, inmates “retain[] those First Amendment rights that are not inconsistent with [their] status as ... prisoners] or with the legitimate penological objectives of the corrections system.” Abu-Jamal, 154 F.3d at 134 (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)); see also id. at 130-36 (barring prison from enforcing anti-business or profession rule against an inmate author based on the content of his writings and because the material did “not affect the allocation of prison resources, other inmates, or the orderly administration of the prison system any more than ... the writing of other inmates”).
The record before us does not contain sufficient information to determine whether the plaintiffs case involves the violation of a clearly established constitutional right. The complaint alleged that plaintiff is an author, maintained a webpage, was found to have violated prison rules prohibiting a business, was ordered to remove his web-page, and was restricted in his use of the mail and telephone regarding his books and manuscripts.
The record lacks more detailed allegations of facts about the events that prompted the defendants’ actions against plaintiff. Sufficient information about the webpage, books and manuscripts, as well as mail and telephone usage is not available for a proper First Amendment determination that considers the plaintiffs status as a prisoner and the prison’s legitimate penological objectives.
Because the complaint failed to disclose whether the defendants’ actions did not violate a clearly established constitutional right, dismissal on qualified immunity grounds was premature. See Thomas, 463 F.3d at 291 (a dismissal based on qualified immunity will be upheld “only when the immunity is established on the face of the complaint” (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir.2001))). On remand, the District Court may order plaintiff to provide a more definite statement of his claims so that the qualified immunity issue may be resolved expeditiously and without “subjecting the [[Individual [defendants who may be immune from suit to needless discovery and the other burdens of litigation.” Id. at 299-301.
Similarly, the issue of monetary damages need not be resolved until liability is determined.
Accordingly, the claims against defendants for injunctive and declaratory relief as well as the claims against defendants in their official capacities were properly dismissed. The judgment in favor of defendants on the remaining claims will be vacated, and the case remanded for further proceedings.
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OPINION
PER CURIAM.
Pro se appellant Linda Gardner challenges the District Court’s grant of summary judgment on behalf of Unum Life Insurance Company (“Unum”).1 For the following reasons, we will vacate the District Court’s judgment and remand for further proceedings.
I.
In July 2001, Gardner stopped working as an operating room nurse at Thomas Jefferson Hospital after she was diagnosed with avascular necrosis (“AVN”) in both knees. AVN is a progressive disease that results “from the temporary or permanent loss of the blood supply to the bones. Without blood, the bone tissue dies and causes the bone to collapse. If the process involves the bones near a joint, it often leads to collapse of the joint surface.” (SA *644at 660.) In the early stages of AVN, pain develops gradually, and if the disease progresses to the stage where the bone and joint surface collapse, “[p]ain may be severe enough to limit the patient’s range of motion in the affected joint.” (SA-662.) The treatment of choice for “for late-stage [AVN] and when the joint is destroyed” is total joint replacement. (Id. at 665.)
The month after Gardner was diagnosed with AVN, she underwent bilateral knee replacement surgery and began collecting short term disability payments through her policy with defendant Unum. The first surgery was not, however, successful, and Gardner underwent a second procedure on both knees in February 2002.
Unum approved Gardner’s claim for long-term disability benefits by letter dated February 18, 2002. The Policy’s definition of “disability,” however, changes after the employee has received benefits for 24 months, in this case March 2004. At that point, the employee is considered “disabled when Unum determines that due to the same sickness or injury, [she is] unable to perform the duties of any gainful occupation for which [she is] reasonably fitted by education, training, or experience.” (Id. at 73.)
The policy’s glossary defines gainful occupation as follows: “GAINFUL OCCUPATION means an occupation that is or can be expected to provide you with income at least equal to your gross disability payment within 12 months of your return to work.” (Id. at 93).
Several other definitions also are relevant. The glossary defines “gross disability payment” as “the benefit amount before Unum subtracts deductible sources of income and disability earnings.” (Id. at 94.) “Disability earnings” is defined as “the earnings which you receive while you are disabled and working, plus the earnings you could receive if you were working to your maximum capacity.” (Id. at 93.)
Long-term disability, maximum capacity, “means, based on your restrictions and limitations: ... beyond 24 months of disability, the greatest extent of work you are able to do in any occupation, that is reasonable available, for which you are reasonably fitted by education, training or experience.” (Id. at 94-95).
The medical history during the initial uncontested two year period of disability is relevant.
After her second surgery, Gardner was treated for pain management, and in June 2002, after complaining of pain in her ankles, Dr. Roy Friedenthal, her orthopedic surgeon, advised her to have another MRI and x-ray. Dr. Friedenthal reviewed the films, which showed “an irregularity” and a “discontinuity in the joint suiface.” (Id. at 277.) He further noted that the MRI “show[ed] a large lesion in the distal tibia as well as a defect in the dome of the talus.” (Id.)
In November 2002, Gardner began working part-time at a facility located near her home. (Id. at 240.) In an April 2003 statement submitted to Unum, she explained that she had “found a surgical center that will let me come in for a couple of hours once in a while to do lunch relief as an RN. It is on a per diem basis, so they call me when they need me. I have no set hours per week and some weeks I don’t work at all, sometimes 3-4 weeks in a row.” (Id. at 291.) Gardner stated that she could not work two days in a row and that after working she could do nothing but sit with her legs up. She nevertheless preferred to work because it helped her state of mind. (Id. at 296.) As to her day-to-day activities, Gardner cared for herself but spent most of the time “sitting or lying on the sofa watching TV. [She could] go out for an hour or two to do [her] shopping ..., but then [she had] to sit down with *645[her] legs up for a while after that.” (Id. at 291.)
Dr. Friedenthal completed Unum’s attending physician statement and attached it to Gardner’s April 2003 letter. He described her symptoms as unchanged, but noted that she now had AVN of the ankles. He then explained that although he had released her to work in her “own occupation,” she could work no “more than 10 hours a week,” and indicated that her current functional abilities were “3-4 hours” of sedentary activity “every other day.” (Id. at 293-95.) Dr. Friedenthal believed that these abilities would not change. (Id.)
In response to Unum’s request to clarify functional status for full-time sedentary work capacity, Dr. Friedenthal submitted a letter, on July 16, 2003, stating that Gardner:
“has reached maximum recovery with significant persistent symptoms primarily at the left knee with loss of flexion to 85 [degrees] and chronic pain with motion without instability. She has chronic pain in both ankles and prior workup has revealed [AVN] on the right. These conditions impair her ability to stand and walk even occasionally throughout a workday. She has achieved a level of activity that allows her to work for 10 hours a week and this appears to be at a maximum level. I do not anticipate any significant change in her clinical status, and, therefore, do not anticipate a significant change in her ability to be gainfully employed.
Her condition in her ankles may worsen with time and the status of her knees may also worsen with time and may contribute to an increased level of disability in the future.”
(Id. at 335.)
In November 2003, Gardner told Unum that there had been no change in her status, and that she had not recently seen Dr. Friedenthal because there was nothing more that he could do to help her. (Id. at 365.) Unum sought the opinion of Bethany Washburn, R.N., and asked her to review Gardner’s file to evaluate her “expected long term prognosis.” (Id. at 366.) Washburn concluded that it was “not clear what is preventing an increase in function over time, if current function is being tolerated.” (Id.) Unum also requested that its vocational consultant, Deede DeLay, review Gardner’s file to determine whether she “would be able to perform gainful occupation] if she had a full-time sedentary capacity.” (Id. at 369.) DeLay conducted a transferable skills analysis and identified several sedentary occupations for which she believed Gardner would be qualified. (Id. at 371.) A second analysis identified nursing occupations providing a gainful wage. (Id. at 376.)
On January 29, 2004, in a telephone call from Unum, Gardner described her pain as constant and reported that it increased with activity. She said that she mostly sits on the sofa with her feet elevated and that she could do some housework if she took breaks but that nearly everything caused her pain. (Id. at 390-91.) She also stated that nothing seemed to work for the pain except for narcotics, which doctors would not prescribe to her. (Id.)
On February 12, 2004, nurse consultant Kathy Pepin reported to Unum that:
“[b]ased on the medical history of [Gardner’s] conditions and surgical history, it appears that working 10 hours a week is her maximum level of activities. It appears that [Gardner] has pushed herself to do this capacity, even in pain. [Gardner] does have pathology of ankle AVN, for which standing and walking would cause pain and increased swelling. Will discuss with UPMP his analysis of the provided information.”
(Id. at 401.)
After receiving Pepin’s report, Unum asked physiatrist consultant Barry Gen-*646dron, D.O., to “comment on [Pepin’s] analysis and conclusion.” (Id. at 402.) Gendron notified the company that Dr. Friedenthal had not responded to a previous inquiry as to “why the claimant does not have greater sedentary capacity” and stated that he would contact him for clarification. (Id.)
On February 17, 2004, Unum wrote to Gardner that “[a] review has now been completed by our medical department. Based upon our review, it remains unclear why you would not have greater than 10 hours per week sedentary work capacity. So that we may better understand your current level of functionality, we are writing to Dr. Friedenthal.” (Id. at 410-11.)
The next day, Dr. Gendron faxed a letter to Dr. Friedenthal asking whether he “agreed with [Gendron’s] assessment” that Gardner could “work full-time in a sedentary job with only occasional standing or walking.” (Id. at 417-18.) Gendron asserted that Gardner currently worked “[ten] hours per week as an operating room circulating nurse” and opined that a “sedentary job would likely be less physically demanding than” her current position. (Id.)2 Further, Gendron stated that he “did not find any objective documentation detailing why Ms. Gardner would be unable to perform sedentary levels of activity (sitting 6 to 8 hours per day with only occasional walking) with no lifting greater than 10 pounds.” (Id.) At the end of the letter were two paragraphs, each with a blank signature line for Dr. Fried-enthal, as follows:
“[1] I agree that Linda S. Gardner has the capability to perform sedentary work activities for eight hours a day with no lifting greater than 10 pounds, only occasional standing or walking, and sitting 6-8 hours per day. (She is currently working 3 hours a day in a vocation that has greater than sedentary work requirements) ... [or]
I do not agree that Linda S. Gardner can work eight hours per day in a sedentary occupation for the following objective reasons.”
(Id. at 417.)
On March 1, 2004, Dr. Friedenthal examined Gardner and responded to Dr. Gendron’s letter. Dr. Friedenthal’s examination note stated:
“I do not believe that [Gardner] can work as an OR circulator full time. She could perform sedentary work on a full time basis, but needs accommodation with foot rest because of her extension contracture in the left knee and needs to be allowed to change her position frequently, as sitting for long periods of time tends to bring out cramping of quadriceps muscles. It is now two years since her replacement and I believe her level of disability will be chronic in nature.”
(Id. at 427.) Dr. Friedenthal additionally signed below the first paragraph prepared by Gendron, stating that Gardner could perform full-time sedentary activities. He added that Gardner “should be allowed to change her position frequently as required. Need footrest to accommodate knee cont-racture.” (Id. at 425-26.)
On March 12, 2004, Unum notified Gardner that it was discontinuing her benefits. The company explained that because its medical consultants were unclear as to why Gardner’s work capacity was limited to ten hours per week, it had contacted Dr. Friedenthal, who concluded that, with certain restrictions, Gardner could work in a full-time sedentary position. The notice *647then listed the following sedentary occupations that Unum’s vocational consultant determined would pay Gardner a gainful wage and that would accommodate the restrictions identified by Dr. Friedenthal: bill reviewer, managed health care manager, and insurance case manager. (Id. at 441-44.)
Through counsel, Gardner appealed administratively from Unum’s denial. In support of her claim, Gardner referred to various medical records and reports, a letter describing her pain and limitations in daily activities, articles describing AVN, and a letter from an insurance company advising that she did not receive a case management position for which she had interviewed. Gardner clarified that she worked in a colonoscopy facility, not as an operating room nurse as Gendron’s letter to Dr. Friedenthal had stated. She advised Unum that Gendron’s letter incorrectly described her job’s requirements as well as the hours that she worked and had irrevocably damaged her relationship with Dr. Friedenthal. She also submitted a vocational expert report from Charles A. Kincaid, Ph.D., who concluded that she could not earn a gainful wage.
Unum sought review of Gardner’s file by another consultant — nurse Richard Cole. Cole submitted a report concluding, among other things, that Dr. Friedenthal’s March 2004 restrictions “appear reasonable, except that the claimant may not be able to tolerate full time sedentary due to her pain level.” (Id. at 800.) He also surmised that Gardner’s capacity for prolonged sedentary activity was unclear but that she indicated that such activity was “significantly impacted due to pain that is best controlled with rest and elevation. Her reported impact pain has had on her life, again, would be reasonable and will likely not change for the better. She tolerates work to at least a sedentary level on a very sporadic basis, and it is not clear she would be able to tolerate more than that.” (Id. at 799-800.)
After receiving Cole’s report, Unum sent Gardner’s file to Dr. George Seiters for review. (Id. at 801.) He agreed with Cole’s summary of the orthopedic information, but determined that the clinical findings were “consistent with a degree of knee pathology that could be reasonably treated by limited weight bearing and frequent repositioning and should not be aggravated or made significantly symptomatic by sedentary activities.” (Id. at 815.) He thus concluded that it was reasonable for Gardner to work full-time in a sedentary capacity with the restrictions recommended by Dr. Friedenthal. (Id. at 814-17.)
On September 27, 2004, Unum notified Gardner that it was upholding the decision to deny her claim for disability benefits. (Id. at 819-21.) The notification report stated that “[o]ur medical consultant concludes that the medical documentation is consistent with the restrictions and limitations stated by Dr. Friedenthal ... for sedentary capacity....” (Id. at 820.) Unum then informed Gardner that an updated vocational assessment had concluded that she could earn a gainful wage in the following occupations: bill reviewer, insurance case manager, managed health care manager, and telephonic triage nurse. (Id. at 821.)
Thereafter, Gardner filed an action through counsel3 in the United States District Court for the District of New Jersey under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), for review of Unum’s deni*648al of her long-term disability benefits. The District Court granted Unum’s motion for summary judgment and denied Gardner’s cross-motion.
Gardner now appeals.
II.
We have jurisdiction to review the District Court’s order under 28 U.S.C. § 1291, and we review de novo a court’s decision granting summary judgment in an ERISA action. Smathers v. Multi-Tool, Inc., 298 F.3d 191, 194 (3d Cir.2002). “[Ejvery claim for relief involving an ERISA plan must be analyzed within the framework of ERISA.” Hooven v. Exxon Mobil Corp., 465 F.3d 566, 573 (3d Cir.2006).
The summary judgment standard requires us to resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). Summary judgment is appropriate only if “there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The rules are no different when there are cross-motions for summary judgment. Lawrence, 527 F.3d at 310.
Unum contends that the abuse of discretion standard applies because the policy gives Unum discretion to determine eligibility for benefits and to construe the policy’s terms. See Metropolitan Life Ins. v. Glenn, — U.S. -, 128 S.Ct. 2343, 2347-2348, 171 L.Ed.2d 299 (2008). However, before that standard is invoked, it is necessary to consider the posture of the litigation. Unum fails to discuss the important fact that the ruling in its favor was not the result of a trial, but of the grant of its motion for summary judgment. Some of the cases cited for application of the arbitrary and capricious standards are judgments entered after a bench trial in favor of the insurance carrier when the scales weighed in favor of affirming factual disputes in favor of the party holding a favorable judgment. However, summary judgments are not granted when factual disagreements exist. Consequently, Unum is not entitled to rely on inferences favorable to itself or disregard challenges of inaccuracy raised by Gardner.4
Unum relied heavily on Dr. Frieden-thal’s March 2004 evaluation, but Gardner asserts that it does not accurately reflect his medical opinion as to her functional abilities because it was based on false information about her job duties and the hours that she worked as stated in Dr. Gendron’s letter. Unum argues that the March 2004 evaluation constituted substantial evidence supporting its decision because Dr. Friedenthal examined Gardner the same day that he responded to Gendron’s letter. Moreover, Unum discounts Gardner’s assertion that the letter’s misinformation damaged her relationship with Dr. Friedenthal and that Dr. Frieden-thal did not, in fact, conduct an adequate physical examination before responding to Gendron. To resolve the inconsistency requires a weighing of the evidence to determine “the truth of the matter.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Moreover, Gardner’s assertion about the unreliability of Dr. Friedenthal’s March 2004 evaluation is supported by the fact *649that it is so inconsistent with the detailed reports supplied by him throughout the years, and as such it can best be described as aberrant. Viewing the record in Gardner’s favor, there is a serious question as to whether it may have been improper for Unum to seize upon it to deny Gardner’s claim. See Glenn v. MetLife, 461 F.3d 660, 672 n. 4 (6th Cir.2006), aff'd Metropolitan Life Ins. Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008).
In addition, there is a conflict as to the extent of Gardner’s part-time job activities. Unum contends that in a telephone conversation, she stated that at her job, “[s]he is busy running around to set up the operating room ... [and that] she is able to sit at least half of the time.” (SA at 240.) Gardner submitted an affidavit to the District Court asserting that she never described her job in this way.
Gardner also disputes that she was qualified for the jobs identified by Unum’s vocational consultants and argues that they did not engage in a competent evaluation. She contends that Unum determined that she was qualified for any job “within the nursing field” without considering how her skills and experience correspond to those required to perform the duties of a case manager, bill reviewer, or other jobs identified by Unum’s vocational consultants. Unum, on the other hand, asserts that its consultants considered all of the medical evidence as well as Gardner’s experience and background to conclude that she was qualified for the identified occupations.
The policy requires that the claimant be unable to perform the duties of “any gainful occupation” for which she is reasonably fitted by education, training, or experience. Unum was under a duty to make a reasonable inquiry into the types of skills Gardner possesses, and whether they transfer to another job in which she can be gainfully employed as defined by the policy. The record sheds little light on the depth of Unum’s vocational analyses, and Gardner has identified a dispute as to whether she possesses the qualifications to perform the tasks required by the occupations identified by Unum’s vocational consultants.
In considering the arbitrary and capricious aspect of the case, the District Court determined that Unum operated under a conflict of interest because of its position as the plan administrator and the payor of benefits. See Glenn, 128 S.Ct. at 2348. This is one factor that is examined in determining if an administrator abused its discretion by denying benefits. Id. at 2350. In Glenn, the Supreme Court explained that “the conflict of interest ... should prove more important (perhaps of great importance) ... [in] cases where an insurance company has a history of biased claims administration.” Id. at 2351. As an example of such an insurance company, the Supreme Court cited a law review article detailing the history of biased claims review by Unum. Id. The Court of Appeals for the Second Circuit also stated that “First Unum is no stranger to the courts, where its conduct has drawn biting criticism from judges.” McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 137 (2d Cir.2008) (citing Radford Trust v. First Unum Life Ins. Co., 321 F.Supp.2d 226, 247 (D.Mass.2004), rev’d on other grounds, 491 F.3d 21, 25 (1st Cir.2007)). Unum’s “history of deception and abusive tactics [can be] evidence that it was influenced by its conflict of interest as both plan administrator and payor.” See id.
Another matter considered in Glenn is whether the insurer/administrator emphasized “certain medical reports that favored a denial of benefits, [and ignored] certain other reports that suggested a contrary conclusion.” Glenn, 128 S.Ct. at 2352; see McCauley, 551 F.3d at 136-37.
*650In terminating benefits, Unum relied upon Dr. Friedenthal’s March 1, 2004 evaluation and on Dr. Seiters’s report, both of which suggested that Gardner was ineligible. However, Unum disregarded the well-reasoned opinions of two of its own consultants favoring the continuation of payments. Further, until it received the March 2004 communication from Dr. Friedenthal, Unum had persistently failed to credit his opinion about Gardner’s work capacity.
The District Court was confronted with the difficulties inherent in a pro se presentation of a complicated case and is entitled to commendation for the thorough and patient manner in which the litigation was treated. The able judge was well aware of the two standards of review and how they sometimes mesh in a certain circumstances. In some parts of the comprehensive opinion, the lines between the two standards became blurred and resulted in an unwitting evaluation of the record in favor of Unum. Left undetermined were a number of issues that require investigation, amplification, and explanation. Whether Unum’s denial of benefits will prove to be arbitrary and capricious is not before us at this point. The issue is not ripe for a ruling, and we need not discuss the law applicable to that issue which is applicable under uncontested facts.
We have treated this appeal with due regard for Gardner’s pro se status. However, if she wishes to continue with this complicated case, we strongly suggest that she retain a lawyer to represent her.
Because the summary judgment was inappropriate, it will be vacated. Among other measures on remand, the District Court may wish to consider remanding to Unum, see Smathers v. Multi-Tool, Inc., 298 F.3d 191, 200 (3d Cir.2002), or having further discovery or a trial on the merits.
The judgment will be vacated and the case remanded for further proceedings.
. Gardner's pro se brief in this appeal contests the District Court’s denial of her motion for reconsideration, which was docketed in the District Court after she filed her notice of appeal from the summary judgment order. Because Gardner did not file a new or amended notice of appeal within thirty days after the District Court entered the order denying the motion for reconsideration, we review the summary judgment decision only. See Fed. R.App. P. 4(a)(4)(B)(ii); U.S. v. McGlory, 202 F.3d 664, 668 (3d Cir.2000).
. After her claim was denied, Gardner contended that the information given to Dr. Friedenthal was incorrect.
. After filing a brief for Gardner in the District Court, her counsel withdrew and she proceeded pro se.
. Judicial review of an administrative decision is generally limited to the evidence presented to the administrator, see Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir.1997), but charges of fraud or mistake in the record are subject to scrutiny.
In this case, we discuss only material submitted to the District Court which apparently accepted Gardner’s pro se submissions as declarations. We approve that procedure in this case.
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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/8475201/
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OPINION
GARTH, Circuit Judge:
Appellant Joseph M. Strohl (“Strohl”) appeals from the order of the United States District Court for the Eastern District of Pennsylvania denying his 28 U.S.C. § 2254 petition for writ of habeas corpus. We will affirm.
I.
On December 26, 1986, Strohl and a confederate entered and burglarized the home of Ella Wunderly. Mrs. Wunderly, who was home at the time of the burglary, was assaulted, leaving her severely debilitated and possibly unconscious. Strohl returned to Mrs. Wunderly’s home the following day, on December 27, 1986, and again burglarized her home, joined this time by a different confederate than the day before. At the time that Strohl entered Mrs. Wunderly’s home for the second time, Mrs. Wunderly was still alive. The attack on Mrs. Wunderly left her in a coma from which she never awoke. She died more than seven years later, in April 1994.
After an investigation by the police department, Strohl was arrested and charged with the second burglary. He pled guilty and was sentenced in 1987. Before Strohl’s sentencing, the District Attorney’s office sent a letter to the judge advising the court Strohl had not been charged with having assaulted Mrs. Wunderly because the District Attorney’s office lacked any significant evidence implicating Strohl in the assault. The letter also noted that at the time of Strohl’s guilty plea it had been specifically stated that his plea was to the second burglary only. This was done to ensure that double jeopardy would not attach if sufficient evidence was gathered in the future to charge Strohl with the earlier assault and burglary, and — in the event of Mrs. Wunderly’s death — murder.
Mrs. Wunderly spent the duration of her life being cared for in hospitals and nursing homes. During the last few years of her life, Mrs. Wunderly sustained several unexplained injuries, including broken bones and a partially torn ear. She received treatment for these injuries at Le-high Valley Hospital Center. The prosecution did not elect to obtain the hospital reports associated with these incidents. Strohl alleges that, despite his best efforts, he was unable to obtain the reports for use *652during his defense. According to Strohl, these reports no longer exist.
In 1997, the District Attorney of Northampton County, Pennsylvania initiated an effort to investigate unsolved homicides in its jurisdiction. After reviewing the open cases, the District Attorney presented an application requesting that a grand jury be empaneled to review several such cases, one of which was the death of Mrs. Wun-derly. A grand jury was duly seated in March 1999, and, based upon new information obtained from witnesses who had been previously uncooperative, the grand jury issued a presentment recommending that Strohl be charged with criminal homicide of Mrs. Wunderly.
In March 2001, Strohl was tried on these charges and found guilty of second degree murder. He was later sentenced to life in prison. Strohl appealed, and the Pennsylvania Superior Court affirmed Strohl’s judgment and sentence on September 11, 2002. The Pennsylvania Supreme Court then denied allowance of an appeal on February 13, 2003. Strohl subsequently filed a pro se petition under the Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-46, which the trial court dismissed on June 15, 2004. The Pennsylvania Superior Court affirmed the denial of PCRA relief on May 13, 2005. The Pennsylvania Supreme Court again denied allowance of appeal on October 26, 2005.
II.
Strohl then filed his current 28 U.S.C § 2254 petition with the District Court, asserting eight grounds for relief. A United States Magistrate Judge issued a Report and Recommendation recommending that Strohl’s habeas claims be denied without an evidentiary hearing. Report and Recommendation, Strohl v. Grace, No. 06-cv-2708 (E.D.Pa. Mar. 27, 2007) (“Report and Recommendation”). The District Court approved and adopted the Report and Recommendation, and denied Strohl’s petition in its entirety without an eviden-tiary hearing. Order, Strohl v. Grace, NO. 06-cv-2708, 2007 WL 1200132 (E.D.Pa. Apr. 20, 2007).
Strohl filed a timely notice of appeal, and this Court granted a certificate of appealability with respect to the following issues: (1) whether the prosecution suppressed exculpatory evidence, i.e., certain of the victim’s hospital reports (“the hospital reports”), in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) whether Strohl was denied due process because of the delay in his criminal prosecution, including the failure to explore the cause of the death of the victim.
III.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. This Court has appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Because the District Court ruled on Strohl’s habeas petition without conducting an evidentiary hearing, this Court conducts a plenary review. McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir.2009).
In order to obtain habeas relief from his state court conviction and sentence, Strohl must satisfy the standards set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). McMullen, 562 F.3d at 236. AEDPA provides that, where, as here,
a habeas petitioner’s claim was adjudicated on the merits in state court, the petition may not be granted unless the state court decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or was based on an unreasonable determination of the facts in *653light of the evidence presented in the State court proceeding. Under the § 2254 standard, a district court is bound to presume that the state court’s factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.
Simmons v. Beard, 581 F.3d 158, 165 (3d Cir.2009) (quoting 28 U.S.C. §§ 2254(d) & (e)(1)) (internal citations and quotation marks omitted).
A state court decision “fails the ‘contrary to’ prong of AEDPA if the state court reaches a conclusion opposite to the Supreme Court’s own conclusion on a question of law or decides the case differently where the Supreme Court was confronted by a set of materially indistinguishable facts.” McMullen, 562 F.3d at 236. “Similarly, a state court ruling is considered an ‘unreasonable application’ if the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply.” Id. “A state court determination may constitute an unreasonable application even if the Supreme Court has not yet addressed the identical legal issue or fact pattern. Nevertheless, the unreasonable application test is an objective one — a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly.” Id. (quoting Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir.2005)) (quotation marks and alterations omitted).
IV.
Strohl alleges that the prosecution suppressed the victim’s hospital reports in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Pennsylvania Superior Court (“the state court”) rejected Strohl’s argument on the ground that Strohl failed to claim “that the Commonwealth had the Lehigh Valley Hospital Center reports in its possession at the time of the trial and knowingly withheld them.” Commonwealth v. Strohl, No.1954 EDA 2004, 880 A.2d 12 (Pa.Super.Ct. May 13, 2005) (“PCRA Appeal Opinion”) at 5.1
Since the state court adjudicated Strohl’s Brady claim on the merits, we apply the analysis set forth by AEDPA. Simmons, 581 F.3d at 164-65. We begin by determining whether the law applied by the state court is contrary to the law as determined by the United States Supreme Court. “In Brady v. Maryland, the Supreme Court held that due process forbids a prosecutor from suppressing evidence favorable to an accused upon request ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” United States v. Pelullo, 399 F.3d 197, 209 (3d Cir.2005) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194) (quotation marks omitted). “To establish a due process violation under Brady, then, a defendant must show that: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material either to guilt or to punishment.” Id. (quoting United States v. Dixon, 132 F.3d 192, 199 (5th Cir.1997) (quotation marks omitted)).
*654We have held that “possession” in the Brady context extends to material not within the prosecutor’s actual knowledge or possession, provided that the evidence is either (a) known to some other “arm of the state,” United States v. Perdomo, 929 F.2d 967, 971 (3d Cir.1991), or (b) “known to ... others acting on the government’s behalf in the case.... ” United States v. Reyeros, 537 F.3d 270, 281 (3d Cir.2008) (quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quotation marks omitted)).
Strohl argues that, under Perdomo, the prosecution had “possession” of the hospital reports for Brady purposes, and was therefore obligated to produce them. In Perdomo, however, we explained that whether information is deemed to be constructively possessed by the prosecutor— thereby obligating the prosecutor to obtain it under Brady — turns not on “whether the information is easy or difficult to obtain” but rather on “whether the information is in the possession of some arm of the state.” 929 F.2d at 971 (emphasis added). In other words, if the information is in the possession of some arm of the state, there may indeed be an affirmative obligation on the prosecution to obtain such information and disclose it. See id. However, if the information is in the possession of a third-party unrelated to the state — as was true in this case, where the hospital reports were in the possession of Lehigh Valley Hospital Center — Perdomo imposes no such obligation. See id. Accordingly, even assuming that, as Strohl argues, the prosecution could “readily” have obtained the hospital reports, Brief of Petitioner, Strohl v. Grace, No. 07-2495 (3d Cir. Mar. 3, 2009) (“Br. of Petitioner”) at 26, that fact is immaterial to our analysis.
The state court denied Strohl’s Brady claim on the grounds that Strohl failed to claim: (1) that the prosecution had the hospital reports in its possession; and (2) that the prosecution nonetheless knowingly withheld them. PCRA Appeal Opinion at 5. Indeed, Strohl acknowledges that the prosecution did not possess the hospital reports describing Mrs. Wunderly’s treatment at Lehigh Valley Hospital Center. Br. of Petitioner at 14. We therefore need not address any other Brady claim made by Strohl. The state court’s decision was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court. We also conclude that the state court’s finding was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, we affirm the District Court’s denial of Strohl’s petition for habeas relief on his Brady claim with respect to the hospital reports. See Weeks v. Angelone, 528 U.S. 225, 237, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
V.
Strohl alleges that his constitutional right to due process was violated as a result of the prosecution’s decision to delay charging him with the death of Mrs. Wunderly until 1999, some five years after Mrs. Wunderly died. The Pennsylvania Superi- or Court denied Strohl’s claim of a due process violation because Strohl did not meet “his burden of showing actual prejudice.” Commonwealth v. Strohl, No.2097 EDA 2001 (Sept. 11, 2002) (“Direct Appeal Opinion”) at 5 (emphasis added).
The state court adjudicated Strohl’s due process claim on the merits; accordingly, we again apply the two-step analysis dictated by AEDPA. Simmons, 581 F.3d at 164-65 . We begin by determining whether the law applied by the state court is contrary to the law as established by the Supreme Court. It is well-settled that the two-part test set forth in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and further explained *655in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), is used to analyze a claim that a due process violation resulted from a pre-indictment delay.
Under Manon and Lovasco, a defendant “can make out a claim under the Due Process Clause only if he can show both (1) that the delay between the crime and the federal indictment actually prejudiced his defense; and (2) that the government deliberately delayed bringing the indictment in order to obtain an improper tactical advantage or to harass him.” United States v. Beckett, 208 F.3d 140, 150-51 (3d Cir.2000) (citing Marion, 404 U.S. at 325, 92 S.Ct. 455 and Lovasco, 431 U.S. at 789-90, 97 S.Ct. 2044); see also United States v. Ismaili, 828 F.2d 153, 167 (3d Cir.1987).2 Strohl contends that he was subject to actual prejudice as a result of the lost hospital reports. In addressing that claim, the Pennsylvania Superior Court, quoting from Strohl’s brief filed with that court, noted, “Strohl ... claims that he suffered actual prejudice due to lost medical records that ‘could be important,’ ” and “argues that the lost records ‘may’ have resulted in a different medical opinion regarding the cause of the victim’s death.” Direct Appeal Opinion at 5 (first emphasis in original). The state court found that Strohl’s usage of words such as “could” and “may” in his own brief constituted a tacit acknowledgment that his “argument is based purely upon speculation.” Id. On that reasoning, the state court found Strohl’s due process claim to be “without merit.” Id.
The state court’s decision was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court, nor was it based on an unreasonable determination of the facts in light of the evidence presented. We therefore affirm the District Court’s denial of Strohl’s petition for habeas relief on his due process claim. See Weeks, 528 U.S. at 237, 120 S.Ct. 727.
VI.
The District Court correctly denied Strohl’s Brady and due process claims, and we will affirm its judgment on both.
. “In considering a § 2254 petition, we review the ‘last reasoned decision’ of the state courts on the petitioner's claims.” Simmons, 581 F.3d at 165 (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir.2008)). Since the last reasoned decision by a state court on Strohl’s Brady claim was the Pennsylvania Superior Court’s memorandum opinion dated May 13, 2005, our review of the Brady issue is focused on that decision.
. Strohl argues that we should abandon the "improper motive” requirement and instead adopt the position of other circuits which, according to Strohl, have held that even a showing of mere negligence on the part of the prosecutor is sufficient to satisfy that element of the due process claim. We are of course bound by our circuit precedent, but nevertheless note that it is unlikely that Strohl’s claim would succeed even under the standard he proposes. In contrast to the scenario in Howell v. Barker, 904 F.2d 889, 895 (4th Cir.1990), prosecutors here did not delay merely because of their own convenience and certainly do not admit negligence. Nor was the delay a result of prosecutorial error, as was the case in United States v. Ross, 123 F.3d 1181, 1185 (9th Cir.1997). Rather, the delay in this case was due to an initial dearth of sufficient evidence against Strohl that was subsequently ameliorated by the grand jury's 1999 investigation. Even under the diluted standard proposed by Strohl, such a well-justified delay would not constitute prosecutorial negligence. United States v. Moran, 759 F.2d 777, 783 (9th Cir.1985); United States v. Swacker, 628 F.2d 1250, 1254 n. 5 (9th Cir.1980).
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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/8475203/
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OPINION
AMBRO, Circuit Judge.
In March 1988, Shih-Liang Chen purchased property to build a Super 8 Motel. Events related to this purchase led to several lawsuits over the last two decades, including the current suit. In particular, Chen has consistently alleged violations of his civil rights (including his equal protection rights). In this case, Chen brought related claims by means of a 42 U.S.C. § 1983 suit against the Township of Fair-field, as well as its mayor, town council, planning board, and engineer. Chen has also sued his former attorney, Bennett Stern, and Stern’s law firm, Stern, Lavin-thal, Frankenberg & Norgaad, LLC.1
The District Court granted the defendants’ Rule 12(b)(6) motions to dismiss for failure to state a claim. We deny Chen’s motion for leave to file a supplemental appendix and affirm the judgment of the District Court.
I.
Over two decades ago, Chen purchased property in the Township of Fan-field to construct a Super 8 Motel. While Chen was working to gain the town’s approval of the motel, the town council amended its zoning ordinance to prohibit the construction of hotels and motels in Fairfield. Under the amended zoning ordinance, Chen was denied a permit to construct his motel. In response, he sued in state court, alleging that the amendment to the zoning ordinance was passed specifically to prevent him from building the motel. As evidence, Chen noted that, after denying his permit, the planning board approved a different hotel’s expansion. The state court invalidated Fairfield’s amended zoning ordinance, but provided the township with an opportunity to revise it.
In response to the state court’s ruling, Fairfield amended its zoning ordinance in February 1989. Chen again filed suit, this time alleging civil rights violations in connection with the denial of his permit. He settled his underlying claims with the township and its officials in 1990, when Fairfield agreed to allow him to build his motel. Following this settlement, Chen alleges that the township and various officials continued to impede his efforts to construct the motel. As a result, Chen moved to enforce the settlement. Once again, the township agreed to settle the dispute.
In May 1991, Chen was given final approval for his motel. In spite of this approval, he alleges that the township continued to place unnecessary obstacles in his path. For instance, the township did not issue a construction permit until April 1992 — only to revoke it a week later. As a result of these delays and acts, Chen alleges that he lost the property for his motel through foreclosure.
Since 1993, Chen has brought three related lawsuits — one in state court and two (including this ease) in federal court. In his state court action, Chen filed a motion to vacate the initial stipulation of settlement. The trial court denied Chen’s motion, and the appellate division affirmed. The New Jersey Supreme Court denied his petition for certification. In his 1998 *658federal action, Chen sued the township, as well as its mayor, council, planning board, and two town council members, alleging violations of his civil rights and a breach of the initial settlement agreement. The District Court dismissed Chen’s suit as both untimely and barred by claim preclusion and laches. His appeal was dismissed by this Court for failure to prosecute.
In the current case, Chen again alleges violations of his civil rights by the same parties. Chen has also brought civil rights claims against his former attorney, Bennett Stern, as well as Stern’s law firm and the town engineer.
On July 31, 2008, 2008 WL 2966173, in the current action, the District Court granted the defendants’ 12(b)(6) motion to dismiss for failure to state a claim. The Court held that the claims against the township, as well as its mayor, council, and planning board, were barred by claim preclusion. It further concluded that the claims against Stern, Stern’s law firm, and the town engineer were barred by the statute of limitations. Chen filed a timely notice of appeal. We disagree with Chen, and thus affirm.
II.
The District Court had jurisdiction over this case under 28 U.S.C. § 1331. We have jurisdiction over this appeal under 28 U.S.C. § 1291.
The standard of review on a Rule 12(b)(6) motion to dismiss is plenary. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). A motion to dismiss should be granted if the plaintiff is unable to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level.... ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
III.
The Township of Fairfield, as well as its mayor, council, and planning board, argue that Chen’s causes of action against them in this case are barred by the doctrine of claim preclusion. We agree.2
“Claim preclusion bars a party from litigating a claim that it could have raised or did raise in a prior proceeding in which it raised another claim based on the same cause of action.” CoreStates Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 191 (3d Cir.1999). “Claim preclusion requires: (1) a final judgment on the merits in a prior suit involving ... (2) the same parties or their privities[,] and (3) a subsequent suit based on the same cause of action.” Bd. of Trs. of Trucking Employees of N. Jersey Welfare Fund, Inc. v. Centra, 983 F.2d 495, 504 (3d Cir.1992). “If these three factors are present, a claim that was or could have been raised previously must be dismissed as precluded.” CoreStates Bank, N.A., 176 F.3d at 194. With these requirements in mind, “[a] cause of action is defined by its factual contours.” Id. at 200. “In deciding whether two suits are based on the same ‘cause of action,’ we take a broad view, looking to whether there is an ‘essential similarity of the underlying events giving rise to the various legal claims.’ ” Id. at 194 (quoting United *659States v. Athlone Indus., 746 F.2d 977, 984 (3d Cir.1984)).
We turn first to the “final judgment” requirement of claim preclusion. In 1998, the District Court ruled on the merits of Chen’s civil rights claims against the township, as well as its mayor, council, and planning board. In its 1998 opinion, the Court granted the defendants’ 12(b)(6) motion to dismiss for failure to state a claim. Federal Rule of Civil Procedure 41(b) provides that, “[ujnless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.” Therefore, under Rule 41(b), the District Court’s 1998 decision to dismiss Chen’s complaint (which was based on untimeliness, claim preclusion, and laches) “operates as an adjudication on the merits.”
The final two requirements of claim preclusion are also satisfied in this case. Chen brought both his 1998 action and the current case against the same parties. Furthermore, Chen’s allegations in this case arise out the “same cause of action” — in other words, the same series of events related to his attempt to construct a motel in Fairfield. As all three requirements for claim preclusion are satisfied, we hold that the District Court’s 1998 decision precludes Chen’s current suit against the township, and its mayor, council, and planning board.
IV.
Since Stern, Stern’s law firm, and the town engineer were not parties to the 1998 federal action, Chen’s claims against them are not barred by claim preclusion. Even so, his claims against these parties are over a decade old. Therefore, the District Court concluded that these claims were prohibited by the statute of limitations. Again we agree.
The statute of limitations for § 1983 actions “is that which the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Under New Jersey law, the relevant statute of limitations is two years. See N.J. Stat. Ann. § 2A:14-2. At the same time, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (emphasis in original). “[Accrual occurs] when the plaintiff has ‘a complete and present cause of action’ ” — in other words, when “the plaintiff can file suit and obtain relief.” Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941)). Under this rule, “ ‘[t]he cause of action accrues even though the full extent of the injury is not then known or predictable.’ ” Wallace, 549 U.S. at 391, 127 S.Ct. 1091 (quoting 1 C. Corman, Limitations of Actions § 7.4.1, at 526-27 (1991)). On a related note, “[t]he discovery rule dictates that a cause of action accrues when a potential claimant discovers, or should have discovered, the injury that forms the basis of his claim.” Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 216 (3d Cir.2008).
The underlying events that gave rise to Chen’s civil rights allegations ended in 1993, with the final denial of Chen’s construction permit by the Construction Board of Appeals. Chen alleged similar civil rights violations in his 1998 federal action — thereby demonstrating his knowledge over a decade ago of the injuries that are the basis of his causes of action in this case. Whether his causes of action ac*660crued in 1993 or 1998, Chen’s claims against Stern, Stern’s law firm, and the town engineer are barred by the two-year statute of limitations.
Finally, Chen’s claims are not saved by the discovery rule, for he fails to establish in his complaint that the allegations against Stern et al. were based on information that was not available to him (or should not have been discovered by him) until now. Indeed, there appeal’ to have been no obstacles to Chen discovering these injuries in time to bring them in his 1998 federal action. We thus hold that Chen’s claims against Stern, his law firm, and the town engineer are time-barred. * * ‡ * *
We deny Chen’s motion for leave to file a supplemental appendix and affirm the judgment of the District Court.
. In his amended complaint, Chen raises three new state law claims: 1) a fraud claim against all of the defendants; 2) a breach of fiduciary duty claim against Stern and Stern's law firm; and, 3) a legal malpractice claim against Stern and Stern's law firm. The District Court properly exercised its discretion under 28 U.S.C. § 1367(c) in declining to exercise supplemental jurisdiction over these state law claims after dismissing Chen's federal claims.
. Just prior to the disposition date of this matter, Chen submitted a collection of additional supporting documents. He did not have authorization to do so. Chen then filed a motion for leave to file these documents as a supplemental appendix. We deny that motion.
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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/8475205/
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OPINION
BARRY, Circuit Judge.
Keith Stouch appeals from the order of the District Court granting defendants’ *663motions for summary judgment. We will affirm.
I.
Stouch became a member of the Irving-ton, New Jersey Police Department in August 1994, and was terminated on December 31, 2003 after he was found to be psychologically unfit for duty. In essence, Stouch believes that he was retaliated against because of his speech criticizing the police department, and discriminated against because of a disability, in violation of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”).
It is apparent that Stouch repeatedly complained about various policies, conditions, and incidents in the police department over the years, but for the most part, he has failed to set forth with any specificity the dates, content, and context of what he said, and to whom. We cite but a few of those numerous complaints. He complained, for example, that he was asked to falsify reports on at least two occasions, and although he believed it was “commonplace” for other officers to falsify their reports, he could not identify any specific instances. (App. at 60.) He also complained that officers and supervisors falsified their time sheets and slept in their cars or watched television at the police station rather than patrolling, and that there was a practice of not properly responding to 911 calls. He complained, as well, that officers abused the sick leave policy by blatantly ignoring it and suffering no repercussions, although he admitted that he did not have access to other officers’ medical records or personnel files. He was outspoken about the conditions of the communications room, where he worked periodically, complaining that it was moldy, uncomfortably warm, and infested with cockroaches and mice.1 In March 2003, he met with an FBI agent to report that he believed that Chief Michael Chase had been involved in illegal activity concerning stolen goods sometime between 1980 and 1985.
Stouch believed that he was retaliated against, primarily by enforcement of the sick leave policy, because he spoke out about what he perceived to be improprieties in the police department. The sick leave policy provides for “sick checks” whereby officers appear unannounced at the sick officer’s home to ensure that he is actually at home recuperating. Stouch testified that officers appeared at his house at night to conduct sick checks. He did not claim that these visits violated the sick leave policy, but rather that they violated his constitutional rights, and that the policy was enforced only against him. He also believed that the grooming policy, which he purposefully violated, was disparately enforced against him. In a report regarding Stouch’s grooming policy violation, a police captain stated:
Officer Stouch is constantly defiant of lawful authority in matters involving his actions within the agency. He makes a point of his defiance by threatening legal action and claiming to be acting on advice of counsel. On other occasions he has made even written demands of supervisors to report to him in writing their reasons for actions taken by them and gets upon his “soapbox” in gatherings of officers expressing his prowess. I believe he is generally a good and extremely competent police officer however he takes pride in his open insubordination to every act he does not personally agree with and looks to make “a point” whenever possible.
*664(App. at 236.) Finally, Stouch believed that his assignment to the communications room was in retaliation for having “complained about that room constantly.” (Id. at 90.)
Stouch went on sick leave in July 2003 after an incident with another officer, during which Patrolman Brian Rice allegedly threatened him. Stouch’s physician, Dr. Lawrence Eisenstein, sent a letter to Chief Chase which stated that Stouch had been diagnosed with post-traumatic stress disorder (“PTSD”), which he believed had been triggered by the incident with Patrolman Rice. Dr. Eisenstein stated that Stouch was fit to carry his weapon and return to work as of September 30, 2003. He requested that Stouch be exempted from the sick leave policy requirements and be permitted to leave his house while recuperating.
Stouch was ordered to submit to a fitness for duty exam. Alvin Krass, Ph.D. evaluated Stouch and found that he did not have any of the “fears, concerns or responses that are noted with individuals who are suffering from Post-Traumatic Stress.” (App. at 207.) Dr. Krass found that some of Stouch’s responses to the psychological testing indicated a “sense of resistance toward authority.” (Id.) Dr. Krass concluded that Stouch “is not fit to return for work as a police officer” because his test results “support the impression that he is a significantly, if not profoundly, emotionally maladjusted and disturbed person in need of continuing professional care.” (Id. at 209.) Stouch was also evaluated by John Motley, M.D., who rejected the PTSD diagnosis and diagnosed him with a personality disorder with paranoid and narcissistic traits which “interfere[s] [with] his ability to work cooperatively within the rules of his department.” (Id. at 205.) Dr. Motley opined that Stouch “will continue to be a constant irritant to his superiors and fellow officers.” (Id.)
Stouch was served with a Preliminary Notice of Disciplinary Action which alerted him that he had been charged with inability to perform his duties and faced removal from his position. A hearing was held on December 16, 2003, but he did not attend. The hearing officer found that he had been adequately notified and concluded that the department had appropriately dismissed him because he was psychologically unfit to serve as a police officer. Stouch was formally terminated as of December 31, 2003. He appealed his dismissal, and the dismissal was upheld by an administrative law judge (“ALJ”) after four days of hearings. The ALJ found that “Stouch’s history of employment in the Department demonstrates a longstanding and consistent pattern of unwillingness or inability to conform his conduct to that required of a municipal police officer.” (App. at 223.) Stouch appealed to the Merit System Board, which affirmed on February 1, 2007.
Meanwhile, on December 19, 2003, Stouch, joined by his wife, filed a complaint in the U.S. District Court against Irvington Township, the Irvington Police Department, and Police Chief Michael Chase, a complaint later amended to also name Police Director Michael Damiano as a defendant. The amended complaint stated claims of, inter alia, First Amendment retaliation, violation of Stouch’s due process rights, violations of the ADA and NJLAD, and loss of consortium. On June 30, 2008, the District Court granted defendants’ motions for summary judgment. This timely appeal followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting summary judgment is pie-*665nary, and we apply the same standard as the District Court to determine whether summary judgment was proper. Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir.2009); see Fed.R.Civ.P. 56(c) (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 and that the movant is entitled to judgment as a matter of law”). While we view the facts in the light most favorable to Stouch as the non-moving party, he “must introduce more than a scintilla of evidence showing that there is a genuine issue for trial; [he] must introduce evidence from which a rational finder of fact could find in [his] favor.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005) (citation and internal quotations omitted).
III.
A. First Amendment Retaliation
“[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garceta v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In order to succeed on his First Amendment retaliation claim, Stouch must demonstrate “that his activity is protected by the First Amendment, and that the protected activity was a substantial factor in the alleged retaliatory action.” Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009).2 “A public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.” Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir.2006) (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951).
Stouch’s primary argument before us is that he was terminated in retaliation for his speech regarding: (1) falsification of time sheets; (2) falsification of reports; (3) improper responses to 911 calls; and (4) racial discrimination and sexual harassment in the department. It is difficult to identify the exact speech to which Stouch refers, much less when and in what context it took place. See Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir.2001) (noting the importance of the “content, form, and context of the activity in question”). Even assuming arguendo that Stouch’s “speech” was protected by the First Amendment,3 there is no evidence that this speech was in any way related to, let alone a substantial factor in his termination. While Stouch is correct that this is a factual question, Gorum, 561 F.3d at 184, in order to survive a motion for summary judgment, he was required to set forth sufficient evidence that would permit a *666reasonable jury to reach the conclusion he would have them reach. Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir.2005). Stouch simply did not do so.
Accordingly, to the extent that Stouch engaged in activities protected by the First Amendment, the District Court correctly found that no reasonable jury could conclude that his speech was a “substantial factor” in his termination.
B. Discrimination on the Basis of Disability
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ... [the] discharge of employees ... and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, a plaintiff must show that he (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir.2006). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff then bears the burden of establishing that this proffered reason is a pretext for discrimination.
The District Court found that Stouch did not make out a prima facie case because he did not demonstrate that he had a disability. Stouch argues before us that he is disabled because his neck and back surgeries, necessitated by his work injuries, “precluded [him] from doing work that involved lifting and carrying.” (Appellant’s Br. at 61.) He also mentions, without elaboration, his diagnosis of PTSD. He argues that he was otherwise qualified to be a police officer in light of his physician’s opinion that “there would be no problem with [Stouch] carrying out his daily duties as a police officer.” (App. at 131.)
But assuming arguendo that Stouch has made out a prima facie case, defendants have set forth legitimate, non-discriminatory reasons for his termination. The consulting psychologist found that Stouch was psychologically unfit for duty, and the consulting psychiatrist diagnosed him with a personality disorder that interfered with his ability to work cooperatively as a police officer. His termination was affirmed by the ALJ after a hearing and by the Merit System Board.
There is no evidence that the stated reasons for Stouch’s termination were a pretext for the defendants to discriminate against him on the basis of a disability. As we have explained:
In order to prove the employer’s explanation is pretextual, the plaintiff must “cast [] sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication ... or ... allow[ ] the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994). A plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either “(i) discrediting the employer’s proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Id. at 764.
*667Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007) (alterations in original). Stouch has failed to carry this burden.4
C. Retaliation in Violation of the ADA and NJLAD
The ADA prohibits discrimination against an individual who has “opposed any act or practice made unlawful by [the ADA]” or who has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the ADA. 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation under the ADA, Stouch was required to show: “(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.” Williams v. Phila. Hous. Auth. Police Dept., 380 F.3d 751, 759 (3d Cir.2004) (internal quotations and citations omitted). A plaintiff need not be “disabled” under the ADA to prevail on a retaliation claim. Id. at 759 n. 2. The McDonnell Douglas burden-shifting framework also applies to ADA retaliation claims. Id. at 760 n. 3.
Stouch has not explained why any of his activities — including his request for a different light duty job, his complaint to OSHA, and his request for exemption from the sick check policy — are protected under the ADA. His complaints to supervisors and OSHA about the communications room were not related to any disability but, rather, focused on his dissatisfaction with the conditions of the room. With respect to his physician’s request that he be “allowed to leave his house freely without potential retaliatory actions by the [police] department” (App. at 131), he does not explain why this constituted a request for accommodation based on a disability. In any event, as we have already described, defendants have asserted legitimate, non-discriminatory reasons for Stouch’s termination and Stouch has failed to demonstrate that these reasons were a pretext for unlawful retaliation.5
D. Hostile Work Environment
To establish a cause of action for a hostile work environment under the NJLAD, a plaintiff must demonstrate “that the complained-of conduct (1) would not have occurred but for the employee’s protected status, and was (2) severe or pervasive enough to make a(3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive.” Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 803 A.2d 611, 625 (2002) (citing Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993)). There is simply no evidence to support Stouch’s claim that the sick leave policy *668was enforced against him because of comments he made about racial discrimination.
E. Due Process
Finally, Stouch alleges that his due process rights were violated because, although he received a notice of the disciplinary hearing which led to his termination, he believed that the date of the hearing had been changed and he therefore did not attend. It is clear, however, that the procedural protections afforded him were more than adequate to satisfy the due process requirements of notice and opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Stouch received notice of the December 16, 2003 hearing and the charges against him, and it is unclear why he did not attend. The hearing was held in Ms absence after the hearing officer concluded that he had received adequate notice. He appealed the hearing officer’s decision upholding his termination to the Office of Administrative Law, and the AL J held a four-day hearing. Stouch then appealed this decision to the Merit System Board, which affirmed. Accordingly, Stouch’s due process argument is without merit.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. Stouch filed a complaint about the room's conditions with the Occupational Safety and Health Administration (OSHA) in June or July 2003.
. If Stouch satisfied both factors, the burden would shift to the defendants to show that “the same action would occur if the speech had not occurred." Gorum, 561 F.3d at 184.
. Because neither the District Court nor the parties addressed whether Stouch’s “speech” was made as a citizen or in the course of his duties as a police officer, for ease of analysis, we will also assume that Stouch spoke as a citizen. To the extent that Stouch has adequately identified the speech to which he is referring, police misconduct is indeed a matter of public concern. See Baldassare, 250 F.3d at 195 (noting that attempts "to bring to light actual or potential wrongdoing or breach of public trust” can constitute a matter of public concern) (internal quotations and citation omitted); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir.1994) ("Disclosing corruption, fraud, and illegality in a government agency is a matter of significant public concern.”).
. Stouch also argues that he was discriminated against on the basis of a disability in violation of the NJLAD. N.J. Stat. Ann. § 10:5-4.1. A plaintiff's burden to establish a prima facie case of discrimination under the NJLAD is less onerous than under the ADA, Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir.1998), but the Supreme Court of New Jersey has otherwise adopted the McDonnell Douglas burden-shifting framework. Viscik v. Fowler Equip. Corp., 173 N.J. 1, 800 A.2d 826, .833-34 (2002). Therefore, the District Court properly granted summary judgment on this claim as well.
. Because we employ the same test to evaluate a claim of retaliation under the NJLAD, Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 961 A.2d 1167, 1192 (2008), Stouch’s claim of retaliation in violation of the NJLAD also fails.
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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/8475207/
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OPINION
BARRY, Circuit Judge.
This case arises out an unfortunate workplace accident that occurred in Newark, New Jersey when Christos Ortzian, appellant herein, fell from the platform of a stationary mixing truck. Ortzian was seriously injured, and the effects of the fall continue to manifest themselves through migraines, seizures, anxiety, and related medical problems. He sued the designer and manufacturer of the mixing truck’s platform, McNeilus Truck & Manufacturing, Inc. (“McNeilus”), alleging that the platform was defectively designed and lacked appropriate warnings. McNeilus moved for summary judgment, the District Court granted the motion, and Ortzian now appeals. We will affirm.
I. BACKGROUND
At the time of the accident, Ortzian was employed as a concrete mixing truck driver by Eastern Concrete. McNeilus designed and manufactured the mixer portion of the truck on which Ortzian worked. Ortzian’s primary task was to deliver concrete, which was mixed and poured into his truck while it was on Eastern Concrete’s premises, to the appropriate locations in a “professional and respectable manner.” (Appellee’s App. at 182.) Once delivery was complete, he was responsible for cleaning the “charge hopper,” which is the mechanism used to transfer the concrete from the mixing truck to a designated location. To cany out this task, he would climb a ladder permanently affixed to the rear side of the truck to an elevated platform measuring approximately twenty-four by twelve inches. While standing on this platform, he would use a hose to wash away any cement residue on the charge hopper.
The elevated platform that Ortzian used on the day of the accident was surrounded on three sides by a single, steel railing. The railing was approximately thirty-three inches above the base of the platform, and the platform had a metal toe plate that extended up a few inches from its edge. The railing and toe plate encircled the platform except for the portion where the ladder met the platform. That opening measured roughly eighteen and a half inches. A truck operator stepped on and off the platform from the ladder through that opening. There were no other safety features on the platform.
On July 27, 2005, Ortzian was standing on his truck’s platform cleaning the charge hopper with the water hose he was holding in one hand. As there were no witnesses and Ortzian’s memory of the incident is poor, the details of what happened next are largely unknown. Just before falling nine to twelve feet to the ground, Ortzian recalls having both of his feet on the platform and facing the truck. He does not remember in which hand he held the hose, where his other hand was, or whether he was standing or crouching. Ortzian also has no recollection of whether he fell forward, backwards, over the railing, under it, or through the gap where the railing met the platform. It is unclear whether he lost consciousness before he fell or upon hitting the ground, but he does recall it being a “[h]ot, hot” day. (Id. at 156.) Medical *670reports of the incident note that paramedics arrived at the scene to find Ortzian lying on the pavement beside the mixing truck.
Ortzian filed suit against McNeilus, and the case was removed to the U.S. District Court for the District of New Jersey. By the time McNeilus filed its motion for summary judgment, two claims were remaining: a design defect claim and a failure to warn claim.1 Among Ortzian’s evidence was the testimony of his expert, Robert Reed, who proposed several safety features that he claims would have corrected the alleged defect in the platform’s design. The District Court granted summary judgment on the ground that Ortzian failed to raise a material dispute “as to whether the alleged defects caused his injury.” (App. at 52.) The Court found that, notwithstanding Reed’s testimony as to how the platform was defective without some kind of guard to protect an individual from falling through the eighteen and a half inch gap in the railing or in the space between the platform and the railing, any proposed modifications to the product’s design were useless without evidence of causation. Absent evidence of how Ortzian fell, said the Court, “a jury would be left to speculate as to whether McNeilus’ alleged negligence in not including the proposed modifications was the cause of Mr. Ortzian’s injuries.” (Id. at 54-55.)
II. STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. We “exercise plenary review over the District Court’s decision to grant summary judgment,” and apply the same standard that it should have applied when ruling on the motion. Doroshow v. Hartford Life and Accident Ins. Co., 574 F.3d 230, 233 (3d Cir.2009); see Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770-71 (3d Cir.2009). Thus, we should only affirm if “there is no genuine issue as to any material fact” and the defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding whether there is a genuine issue of material fact, we “view the facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.” Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 72-73 (3d Cir.1996) (citations omitted); see Busch v. Marpie Newtown Sch. Dist. 567 F.3d 89, 95 n. 7 (3d Cir.2009).
III. DISCUSSION
Ortzian argues that there was sufficient circumstantial evidence to establish that had the proposed protective measures been in place, he would not have fallen from the platform. In response, McNeilus argues that Ortzian’s theory of causation is too speculative given that he has failed to show that the product was defective without those proposed protections and that the alleged defects caused his injuries.
This case is before us based on the diversity of the parties and, therefore, New Jersey tort law applies. See Lafferty v. St. Riel, 495 F.3d 72, 75 (3d Cir.2007). One of the elements of a design defect claim in New Jersey requires that the plaintiff show that the defect caused injury to a foreseeable user. Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710, 716 (1993). Indeed, “[c]ausation is a fundamental requisite for establishing any product-liability action,” and this requires a plaintiff to demonstrate that the “defect in the product was a proximate cause of the injury.” Id. “[Circumstantial evidence, as a basis for deductive reasoning in the determination of civil issues, is defined as *671‘a mere preponderance of probabilities.’” Kita v. Borough of Lindenwold, 305 N.J.Super. 43, 701 A.2d 938, 941 (N.J.Super.App.Div.1997) (quoting Jackson v. Del. L. & W.R. Co., 111 N.J.L. 487, 170 A. 22, 24 (N.J.1933)). Although such evidence may be a sufficient basis for decision, the circumstances must be sufficiently strong that they can reasonably form the basis of a jury’s conclusion. See Fedorczyk, 82 F.3d at 74. Ortzian acknowledges that the circumstances of this case leave crucial questions unanswered.
As the District Court noted, our decision in Fedorczyk drives the analysis here. In Fedorczyk, the plaintiff slipped while taking a shower in her cabin bathroom aboard a cruise ship. Although the floor of the bathtub was equipped with four anti-skid strips, the plaintiff was unable to recall if, at the time of the fall, her feet were on the strips or in the slippery space between them. Her expert opined that there was not sufficient slip protection, but he also conceded that it would be impossible to prevent slips altogether given the presence of liquid soaps used during bathing. Nonetheless, he concluded that the lack of sufficient anti-slip protection caused the injury. The District Court granted summary judgment for the vessel operator, and we affirmed, holding that “the expert’s opinion that inadequate stripping caused Fedorczyk’s injuries is not based on any direct evidence or circumstantial evidence of where she was standing when she fell.” Id. at 75. We found that because “[n]o evidence presented tends to prove Fedorc-zyk was standing either on or off the stripping at the time she fell,” without that evidence, the jury would be left to speculate as to whether the vessel operator’s negligence in failing to make the tub more slip resistant was the cause of the injury. Id.
Ortzian’s attempt to distinguish his case from Fedorczyk is unavailing. He argues that, unlike Fedorczyk, his case “concentrates not on ‘the fall’ but on the absence of guarding to check or stop the fall.” (Appellant’s Br. at 23.) We disagree. We found that a key problem for the plaintiff in Fedorczyk was that she could not recall whether her feet were on the anti-slip strips at the time she fell, because if they were, she could not show that the vessel operator’s failure to provide sufficient protection caused her fall. Similarly, Ortzian did not know how he fell from the platform and, thus, he cannot say whether one of Reed’s proposed modifications would have prevented him from doing so.
Ortzian argues that his expert’s testimony buttons up this causation problem. Reed’s recommendations for “a swiveling J- or T — bar and the slide-up mid-rail for the gate area,” as well as a “mid-rail around the platform perimeter,” might have prevented falls both through the eighteen inch gap in the railing where the ladder meets the platform and through the space that exists between the railing and the floor of the platform. (Id. at 25.) The District Court, however, found that even assuming these untested protections were in place, the possibility still would exist that Ortzian could have fallen over the railing. In responding to this “third way” that he could have fallen, Ortzian points to the following testimony from his expert:
Question: Are you saying that if you encircle the top of the platform, there is no possible way anybody could fall?
Reed: No, as I stated, someone intentionally could jump over.
Question: I’m not talking about intentionally. I’m talking about accidentally-
Reed: I’m sure there would be some incident of negligence that could happen but in the normal task, the normal task, no.
(Id.) This testimony, however, is not as helpful as Ortzian might wish. Reed does *672nothing to explain “normal task,” which is important given that all of the facts as to how Ortzian was positioned before the fall, such as the location of his free hand, are unknown. Reed also concedes that “some incident of negligence” could have caused a person to fall over the railing. (Id.) This, too, is a crucial point because it is impossible to foreclose the possibility that Ortzian failed to take appropriate measures to ensure his own safety, such as, for example, by holding the railing with his free hand. In sum, it is not clear that any of Reed’s proposed modifications, including encircling the top of the platform, would have prevented a fall.
IV. CONCLUSION
Because a jury would be required to rely on sheer speculation as to how Ortzian fell and, thus, whether any of the alleged defects was the cause of that fall, summary judgment was properly granted. The order of the District Court will be affirmed.
. Ortzian conceded that it was appropriate to grant summary judgment on the failure to warn claim. As such, that issue is not before us on appeal. (Appellant's Br. at 15 n. 3.)
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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/8475211/
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OPINION
BARRY, Circuit Judge.
This appeal is taken from a November 12, 2008 order of the District Court denying appellants’ application for attorneys’ fees pursuant to 28 U.S.C. § 2465(b) (“Section 2465(b)”). We will affirm.
I.
Because we write solely for the parties’ benefit, we set forth only those facts necessary to our analysis.
In June 2002, the Government seized more than three dozen bank accounts at Merchants Bank (now Valley National Bank) containing more than $21 million. The funds were seized in connection with the arrest of Maria Carolina Nolasco, a bank employee, on tax evasion and other charges. Two years later, Nolasco pled guilty to one count of operating a money transmitting business without a license, in violation of 18 U.S.C. § 1960, and four counts of filing false tax returns, in violation of 26 U.S.C. § 7201.
In December 2004, the Government commenced criminal in persmam forfeiture proceedings against Nolasco pursuant to 18 U.S.C. § 982(a) and Federal Rule of Criminal Procedure 32.2, and the District Court filed a preliminary order of forfeiture. Twenty-four claimants, including appellants, then filed petitions under 21 U.S.C. § 853(n) (“Section 853(n)”) asserting title superior to Nolasco in the funds.1
In June 2006, the District Court granted the Section 853(n) claimants’ motion for summary judgment and amended the preliminary order of forfeiture. In so doing, the Court found appellants’ interests superior to Nolasco’s because the Government offered no evidence that Nolasco held any right, title, or interest in the property. *678According to the Court, “the Government [sought] to transform this criminal forfeiture proceeding into a tool for investigation of Brazilian crime and international financial wrongdoing. Were this Court to comply, it would far exceed the bounds of the role assigned to it by the criminal forfeiture statutes.” (A70.)2
Based on the order granting summary judgment, appellants sought attorneys’ fees, costs, and interest under Section 2465(b) as claimants who “substantially prevailed]” in a “civil proceeding to forfeit property.” In the alternative, appellants sought an award of interest from the United States. The District Court rejected those requests.
We have jurisdiction to review the final order of the District Court pursuant to 28 U.S.C. § 1291.
II.
A.
Our review of legal questions, including questions of statutory interpretation, is plenary. United States v. Dees, 467 F.3d 847, 851 (3d Cir.2006), cert. denied, 552 U.S. 830, 128 S.Ct. 52, 169 L.Ed.2d 45 (2007). When interpreting a statute, “we need to ‘discern legislative intent,’ considering first the plain meaning of the statutory text.... The plain meaning of the text should be conclusive, except in the rare instance when the court determines that the plain meaning is ambiguous.” Lawrence v. City of Phila., 527 F.3d 299, 316-17 (3d Cir.) (internal citations omitted), cert. denied, — U.S. -, 129 S.Ct. 763, 172 L.Ed.2d 755 (2008).
B.
In analyzing whether appellants are entitled to attorneys’ fees, costs, and interest under Section 2465(b), we will first place the underlying Section 853(n) proceedings in context. We will then address the elements of a claim under Section 2465(b) and analyze those elements in the context of an underlying Section 853(n) proceeding.
i.
When an in personam criminal forfeiture prosecution is initiated, a third party is barred from intervening in the criminal case and from commencing an action against the United States concerning the validity of an alleged property interest. 21 U.S.C. § 853(k). A third party’s property interest, however, may be vindicated by means of Section 853(n). Therefore, following a finding of forfeitability and the entry of a preliminary order of forfeiture, a third party may assert an interest in forfeited property by petitioning the court for an ancillary proceeding in which to adjudicate the validity of that property interest. 21 U.S.C. § 853(n)(2). That proceeding “is the only avenue by which a third-party claimant may seek to assert an interest in property that has been included in an indictment.” United States v. Puig, 419 F.3d 700, 703 (8th Cir.2005).
To prevail at a Section 853(n) ancillary proceeding, a claimant must demonstrate a vested legal right, title, or interest in the property superior to the defendant’s or that the claimant is a bona fide purchaser for value of the property interest. 21 U.S.C. § 853(n)(6)(A)-(B). In short, where “a third party’s interest in the for*679feited property, at the time of the criminal acts, [is] superior to the criminal defendant’s interest, then the interest that the government acquires when it steps into the defendant’s shoes is subordinate to that of the third party.” United States v. Lavin, 942 F.2d 177, 185 (3d Cir.1991).
Should a claimant demonstrate a property interest superior to the defendant’s, the court will amend the order of forfeiture accordingly, 21 U.S.C. § 853(n)(6), and, on disposition of all petitions filed under Section 853(n), may enter a final order of forfeiture, see 21 U.S.C. § 853(n)(7).
ii.
Enacted as part of the Civil Asset Forfeiture Reform Act (“CAERA”), Section 2465(b) provides that a claimant who “substantially prevails” in “any civil proceeding to forfeit property under any provision of Federal law” may recover from the United States reasonable attorneys’ fees, costs, post-judgment interest, and, in some instances, actual or imputed pre-judgment interest. 28 U.S.C. § 2465(b)(1)(A)-(C).
Thus, for a third-party Section 853(n) claimant to recover attorneys’ fees, costs, and interest under Section 2465(b), the claimant must establish that he or she: (1) substantially prevailed; (2) in a civil proceeding; (3) to forfeit property. If one of those elements is not satisfied, a claimant is not entitled to the benefits of Section 2465(b).
a.
In United States v. Lavin, in determining the timeliness of an appeal, we stated “that a proceeding under 21 U.S.C. § 853(n) ... is a ‘civil case’ for purposes of [Federal Rule of Appellate Procedure 4(a)(1) ].” 942 F.2d at 182. We relied on the principle that civil cases are, broadly, any actions that are not criminal prosecutions. Id. at 181 (citing 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice para 204.08[1], at 4-29 (2d ed.1991)). We further noted that proceedings related to criminal prosecutions, such as habeas corpus petitions and actions dealing with bail bonds, are civil in nature, despite their relationship to a prosecution. Section 853(n) ancillary proceedings are not part of the criminal prosecution. See Fed. R.Crim.P. 32.2(c)(4).
Lavin is consistent with the great weight of authority. See United States v. Pease, 331 F.3d 809, 816 (11th Cir.2003) (finding that Section 853(n) ancillary proceedings are civil); United States v. Gilbert, 244 F.3d 888, 906-08 (11th Cir.2001) (finding Section 853(n) civil for purposes of appellate jurisdiction); United States v. Alcaraz-Garcia, 79 F.3d 769, 772 n. 4 (9th Cir.1996) (following Lavin approach to timeliness of appeal); United States v. Douglas, 55 F.3d 584, 585 (11th Cir.1995) (holding that Section 853(n) proceeding is civil action under Equal Access to Justice Act); see also David B. Smith, Prosecution and Defense of Forfeiture Cases § 14.08[2][c], at 14-117 (2009 ed.) (“[T]he ancillary hearing procedure is civil in nature.”).3
Therefore, because a Section 853(n) proceeding is separate and distinct from the prosecution itself, Section 853(n) ancillary proceedings are “civil” proceedings for purposes of Section 2465(b).
b.
The Government contends that Section 853(n) ancillary proceedings are not proceedings “to forfeit property,” but *680rather are proceedings to quiet title and, accordingly, are not subject to Section 2465(b). We agree.
Other courts have analogized Section 853(n) proceedings to “quiet title” proceedings. For example, in deciding that a Section 853(n) third-party claimant did not have a right to a jury trial, the Fourth Circuit concluded that Section 853(n) proceedings are “most analogous to an equitable petition to quiet title.” United States v. McHan, 345 F.3d 262, 275 (4th Cir.2003). According to the court, “[l]ike a § 853(n) proceeding, the purpose of a quiet title action is ‘to determine which named party has superior claim to a certain piece of property.’ ” Id. (quoting Cadorette v. United States, 988 F.2d 215, 223 (1st Cir.1993)). Although the court acknowledged differences between the proceedings, because “the relief offered to a complainant in a quiet title action is substantially the same relief offered to a § 853(n) petitioner,” it concluded that the claimant was not entitled to a jury trial. Id.; cf. Gilbert, 244 F.3d at 911 & n. 47 (observing that ancillary hearing to litigate third party’s property rights under analogous RICO statute “is essentially a quiet title proceeding”). Stated somewhat differently, a Section 853(n) proceeding cannot result in the forfeiture of a claimant’s property. Rather, the Section 853(n) proceeding merely ensures that property belonging to a third-party claimant is not inadvertently forfeited as part of a criminal defendant’s property.
Ownership is the only relevant issue in a Section 853(n) ancillary proceeding. See, e.g. United States v. Soreide, 461 F.3d 1351, 1354 (11th Cir.2006) (“Unlike the civil forfeiture statutes, the criminal forfeiture statutes contain no provision for an ‘innocent owner’ defense for third parties.”). Forfeitability has already been proven, and proof of ownership in a Section 853(n) proceeding is a complete defense. United States v. Andrews, 530 F.3d 1232, 1236-37 (10th Cir.2008) (“[A] third party has no right to challenge the preliminary order’s finding of forfeitability; rather the third party is given an opportunity during the ancillary proceeding to assert any ownership interest that would require amendment of the order.”). That difference demonstrates that Section 853(n) ancillary proceedings exclude property from forfeiture and do not “forfeit property” as required by Section 2465(b).
Appellants contend that viewing Section 853(n) ancillary proceedings as quiet title proceedings is too narrow. That argument misses the mark. If a Section 853(n) proceeding is viewed broadly as a proceeding “to forfeit property,” then it should be viewed in context, i.e. it should be viewed as part and parcel of the larger criminal forfeiture proceeding. Indeed, before noting that the Federal Rules of Civil Procedure would apply in many respects to Section 853(n) proceedings, the Advisory Committee declined to adopt the Civil Rules in full “[bjecause an ancillary hearing is connected to a criminal case.” Fed.R.Crim.P. 32.2, Advisory Committee Notes on 2000 Amendment (emphasis added). Therefore, although civil in nature, because a Section 853(n) proceeding remains under the larger criminal forfeiture umbrella, application of Section 2465(b) would frustrate Congress’ intent to reform civil forfeiture proceedings. See, e.g., H.R.Rep. No. 106-192, available at 1999 WL 406892, at *2 (noting that CAFRA “would create general rules relating to federal civil forfeiture proceedings designed to increase the due process safeguards for property owners whose property has been seized”).
Our holding is consistent with United States v. Huynh, 334 Fed.Appx. 636 (5th Cir.2009) (unpublished), cert. denied, - U.S.-, 130 S.Ct. 473, 175 L.Ed.2d 309 (2009), which addressed an analogous is*681sue. There, plaintiffs, who, pursuant to a proceeding under 18 U.S.C. § 983(e), set aside the forfeiture of property, sought attorneys’ fees as substantially prevailing parties under CAFRA. According to the court, however, Section 2465(b) “applies only to civil proceedings ‘to forfeit property,’ that is, civil forfeiture actions initiated by the Government.” Id. at 638. Because “[plaintiffs’ claim ... [sought] to set aside a forfeiture that ha[d] already occurred,” the court declined to award attorneys’ fees. Id.4
Similarly, because a Section 853(n) ancillary proceeding is not a proceeding “to forfeit property,” appellants are not entitled to attorneys’ fees, costs, or interest pursuant to Section 2465(b).5
Our holding also comports with the Eighth Circuit’s reasoning in United States v. Moser, the only court of appeals to address this issue. 586 F.3d 1089 (8th Cir.2009) (holding that successful claimant in Section 853(n) ancillary proceeding may not recover attorneys’ fees under Section 2465(b), in part due to government’s persuasive argument that Section 853(n) proceeding is akin to quiet title action).
C.
Finally, we address whether appellants are entitled to an award of interest from the United States.
In Library of Congress v. Shaw, the Supreme Court enumerated the “no-interest rule,” holding that “[i]n the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award.” 478 U.S. 310, 314, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986); accord Larson v. United States, 274 F.3d 643, 647-48 (1st Cir.2001); United States v. $30,0006.25 in U.S. Currency, 236 F.3d 610, 613-14 (10th Cir.2000); United States v. $7,990.00 in U.S. Currency, 170 F.3d 843, 844-45 (8th Cir.1999); Ikelionwu v. United States, 150 F.3d 233, 239 (2d Cir.1998).
In the context of seized funds, however, the Sixth, Ninth, and Eleventh Circuits permit claims of interest to proceed against the United States. See, e.g., United States v. 1461 W. 42nd St., 251 F.3d 1329, 1338 (11th Cir.2001); United States v. $515,06042 in U.S. Currency, 152 F.3d 491, 504 (6th Cir.1998). The leading minority case is United States v. $277,000 U.S. Currency, 69 F.3d 1491 (9th Cir.1995). There, the court found that because the interest on seized funds “bec[a]me part of the res,” it should “be returned with the res to the claimant.” Id. at 1496. According to the court, that result did not require the United States “to pay for damage it has done,” but rather to “disgorge benefits that it has actually and ealculably received from an asset that it has been holding improperly.” Id. at 1498; see also id. at 1494 (observing that “in any normal commercial dispute over property, the disputed property would, as soon as practical, be placed in an escrow account to earn interest that would go to whoever was the ultimate winner”). A later Ninth Circuit opinion, Carvajal v. United States, observed that the minority view was consistent with Congress’ intent in passing *682CAFRA, a statute that “ratified the outcome, if not the rationale” of the minority perspective. 521 F.3d 1242, 1248-49 (9th Cir.2008) (quotation omitted).
The minority view, however, is at odds with Shaw. First, Shaw explicitly noted that “the force of the no-interest rule cannot be avoided simply by devising a new name for an old institution.” 478 U.S. at 319, 106 S.Ct. 2957. Thus, whether labeled as damages, loss, earned increment, just compensation, discount, offset, penalty or any other term, the no-interest rule remains applicable. In other words, interest by any other name is still interest.
Second, Shaw left no doubt that “[cjourts lack the power to award interest against the United States on the basis of what they think is or is not sound policy.” 478 U.S. at 321, 106 S.Ct. 2957; see also Larson, 274 F.3d at 647 (“[N]either fairness considerations nor rules applicable to private disputes can alone provide grounds for abrogating sovereign immunity.”). Thus, the minority view expressed in $277, 000 in U.S. Currency (finding private transactions instructive) and Carvajal (relying on CAFRA’s legislative history) is in conflict with Shaw.
We choose to follow the majority approach and hew to the letter of Shaw by holding that, in the absence of express congressional consent to the contrary, the United States is immune from an award of interest. Appellants point to no governing statute entitling them to interest. Therefore, appellants may not recover interest against the United States.
III.
For the reasons stated above, we will affirm the order of the District Court.
. Two of the twenty-four petitions were dismissed.
. The funds became the subject of a torturous procedural labyrinth involving the Manhattan District Attorney's Office, New York state courts, the United States District Court for the District of Columbia, Brazilian courts, and a Mutual Legal Assistance Treaty. Those proceedings, however, are not germane to this appeal. Suffice it to say that the funds have either been forfeited by appellants or are in the custody of the U.S. Department of Justice.
. But see United States v. Yerardi, 192 F.3d 14, 19 (1st Cir.1999) (ancillary proceeding is criminal in nature for purposes of adverse spousal testimony privilege); United States v. Gardiner, 512 F.Supp.2d 1270, 1272 (S.D.Fla.2007) (finding Section 853(n) proceeding criminal and, thereby, not covered by Section 2465(b)'s fee-shifting provision).
. The only court to find Section 853(n) claimants eligible for attorneys' fees pursuant to Section 2465(b) is the Eastern District of Virginia in United States v. D'Esclavelles, 541 F.Supp.2d 794 (E.D.Va.2008). That case, however, was reversed on other grounds. United States v. Buk, 314 Fed.Appx. 565 (4th Cir.2009). The Fourth Circuit did not address the issue.
. Because we hold that Section 853(n) proceedings are not proceedings "to forfeit property” and therefore not subject to CAFRA's attorneys' fee provisions, we need not address whether appellants substantially prevailed.
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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/8475213/
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OPINION
BARRY, Circuit Judge.
This case arises out of a dispute over the terms of an oral agreement between LG International (America), Inc. (“LGIA”) and Intercon Enterprises, Inc. (“Intercon”), whereby LGIA, a fiber optic cable importer, agreed to pay sales commissions to Intercon. Three years into the agreement, Intercon was not satisfied with the amount of the commissions it had received, and brought a breach of contract claim1 against LGIA in the District Court. After a trial, a jury returned a verdict for Inter-con and awarded $805,009.25 in damages.2 LGIA raises two issues on appeal, both related to the jury instructions: that the Court erred (1) in refusing to include in the breach of contract instruction a statement that a “party seeking sales commissions, pursuant to an oral contract, [must] establish that it was the ‘efficient producing cause’ of the sale,” and (2) in giving a good faith and fair dealing instruction, because neither party pleaded anything about good faith and fair dealing, and erred, in any event, by misstating the language of the instruction. We will affirm.
*684
I. Factual Background, and Procedural History
In 1999, Intercon’s owner, Kwan Kim, contacted Kevin Shon, then a salesperson at LGIA, about importing South Korean fiber optic cable for a cable television company where Mr. Kim had a contact. In early 2000, Intercon and LGIA entered into the oral sales commission agreement referenced above (the “Contract”) whereby Mr. Kim agreed to introduce LGIA to additional potential customers. Soon thereafter, LGIA began receiving orders for fiber optic cable.
During the next three years, LGIA made significant sales of fiber optic cable, including the sales at issue in this case to two cable television companies. LGIA sold nearly $25 million in fiber optic cable to Adelphia Communications Company (“Adelphia”) and nearly $25 million to Comcast Corporation (“Comcast”). For these sales, Intercon believes it was entitled to commissions of two percent of the sales volume, for a total of $499,000 and $497,000 for sales to Adelphia and Com-cast, respectively. LGIA sees it differently, and, until this litigation, had paid no commissions to Intercon for the Adelphia sales and only $192,000 for the Comcast sales.
At trial, neither party disputed the existence of the Contract, but two of its terms were hotly contested. As the District Court instructed the jury,
Intercon claims that when it brought the idea of selling cable in the United States to LGIA, it expressly required LGIA to agree that Intercon would be the exclusive sales agent for all sales LGIA made to ... Comcast and Adelphia. Thus, Intercon alleges that as a result of introducing this business opportunity to LGIA, LGIA agreed to pay it a 2 percent commission on all Comcast and Adelphia sales, regardless of Intercon’s involvement in the processing of orders from these companies.
(A. at 467.) By contrast, LGIA claimed that it “had an agreement with Intercon pursuant to which [LGIA] would pay a sales commission on all sales of fiberoptic cable procured by Intercon [and] that In-tercon was required to produce a customer who was ready, willing and able to perform.” (Id.) The other somewhat heated issue concerned the amount of the commission percentage.
With respect to the sales made to Adelp-hia, LGIA’s position was that Intercon “did almost nothing,” (A. at 440), and that LGIA had to “take up the task of trying to bring in Adelphia business” itself (A. at 441.) LGIA presented evidence at trial that Intercon had not earned any commission for the Adelphia sales because Inter-con had not procured the Adelphia sales; that, in fact, LGIA had hired a second broker to facilitate those sales.
In its closing argument, Intercon argued, in essence, that LGIA’s hiring of a second broker for the Adelphia account did not excuse LGIA’s contractual duty to pay Intercon commissions for LGIA’s sales to Adelphia. Intercon asked the court for an instruction on the implied covenant of good faith and fair dealing to complement Inter-con’s convoluted argument to the jury that the implied covenant of good faith and fair dealing prevented LGIA from using its decision to hire a second broker as an excuse for not paying the Adelphia commission to Intercon. The District Court gave the following instruction:
Good faith and fair dealing. The law implies a requirement that each party to a contract must act in good faith and deal fairly with the other party in performing or enforcing the terms of the contract. This implied agreement is part of the contract just as the contract expressly states this good faith and fair *685dealing requirement. To act in good faith and deal fairly, the parties must act honestly towards each other when informing or enforcing the contract. The parties shall not do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.
In this case, LGIA asserts that one of the reasons Intercon is not entitled to a commission on its sales to Adelphia is because it used another agent relating to its Adelphia sales. In response, Inter-con claims that under the duty of good faith and fair dealing that I have just explained, LGIA was not permitted to take any action to destroy Intercon’s ... claims that LGIA was not permitted under the parties’ contract to hire another agent, and that its decision to do so for its Adelphia sales does not excuse LGIA’s obligation under the contract to pay Intercon the 2 percent commission on all Adelphia sales.
(A. at 469.)
As to breach of contract, the District Court instructed the jury that it could “only render a verdict in favor of Intercon if [it] determine[d] that it proved it is entitled to compensation from LGIA pursuant to the specific terms of its agreement with LGIA.” (A. at 466-67.)
II. Jurisdiction and Standard of Reuieiu
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.
The parties dispute whether LGIA made timely objections to the jury instructions and what standard applies on appeal. We exercise plenary review only to ensure that jury instructions do not misstate a legal standard, Abrams v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir.1995), and we review the District Court’s decision to use particular language in the instructions themselves for abuse of discretion, Cooper Dist. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir.1999). If the party claiming error did not make a timely objection, we review for plain error. Id. Fed.R.Civ.P. 51 provides that a party may not assign as error defects in jury instructions unless the party distinctly stated its objection before the jury retired to consider its verdict. See Fed.R.Civ.P. 51; accord Smith v. Borough of Wilkinsburg, 147 F.3d 272, 277 (3d Cir.1998) (“[T]o preserve an issue for appeal, counsel must state distinctly the matter objected to and the grounds of the objection.”).
With respect to the efficient producing cause issue, just as in Cooper, the parties reached agreement during the charge conference on the language of the instruction. LGIA did not object at the close of jury instructions. When the District Court solicited objections immediately after in-sti’ucting the jury, LGIA’s lawyer responded by saying, “[n]o exceptions Your Honor.” (A. at 477.)
LGIA argues that objecting after the instructions would have been futile since it had already raised the issue in its pre-trial briefing.3 However, LGIA’s prior mention of the issue did not excuse the requirement of a timely objection. See Cooper, 180 F.3d at 550 (rejecting appellant’s argument that appellant had already raised the issue in its proposed jury instructions and at the charge conference, because “immediately after giving its instructions, the District Court expressly invited any objections by the parties”).
With respect to the good faith and fair dealing issue, LGIA argues that it did not *686have adequate time to object since the issue was raised for the first time at the charge conference,4 where LGIA claims “it certainly objected.” Again, this argument does not change the critical point of the Cooper analysis — that counsel was given the opportunity to object and declined to do so.
Because LGIA failed to make a timely objection to either of the issues it raises on appeal, we review both issues for plain error.
III. Analysis
A. Effective Producing Cause
LGIA argues that the District Court erred by not instructing the jury that Intercon was required to prove that it was the “effective producing cause” of a sale before it could become entitled to commissions. According to LGIA, “[i]t is well-established that under applicable New Jersey law, when there is an oral contract for commissions, a broker ‘must establish that he was the ‘efficient producing cause’ in bringing about the sale.’ ” (LGIA Br. at 22 (quoting Inventive Music Ltd. v. Cohen, 617 F.2d 29, 32 (3d Cir.1980)5)) This is not a correct statement of New Jersey law,6 and none of the cases LGIA cites stands for LGIA’s proffered proposition.7
Instead, as we held in Vanguard, New Jersey law applies the “efficient producing cause” presumption when a contract is found to be “silent as to the service required to earn a commission.” Vanguard, 900 F.2d at 651. In Vanguard, we explained that “the parties had agreed carefully to delineate their obligations to each other, [and] reading the agreement as a whole there is not the slightest hint that Vanguard would be due commission on sales or leases regardless of any participation by it in the transaction.” Id. at 652. Here, under either party’s formulation, the Contract was not silent as to the service required to earn a commission.8
The District Court’s instructions eliminated the possibility that the jury would find in favor of Intercon while also finding that the Contract was “silent as to the service required to earn a commission.” *687The instruction provided that “[y]ou can only render a verdict in favor of Intercon if you determine that it proved it is entitled to compensation from LGIA pursuant to the specific terms of’ the Contract.9 (A. at 466) (emphasis supplied). This language made the Vanguard presumption superfluous, given that the jury was limited to rendering a verdict for Intercon only if the Contract was not silent as to the services required to earn a commission. Indeed, we agree with the Court that the instruction LGIA proffered would have added to, rather than subtracted from, the potential for jury confusion.
LGIA makes much of the adjectives we used in Vanguard to describe the level of specificity required to overcome the efficient producing cause presumption,10 i.e., the language needed for a commission contract not to be “silent as to the service required to earn a commission,” and argues that there is no way to know whether the jury made such a finding. But the context of Vanguard makes clear that a contract overcomes the presumption if it specifically identifies what service is required to earn a commission. The New Jersey cases we cited in Vanguard for the specificity language — Stevenson Co. v. Oppenheimer, 91 N.J.L. 479, 104 A. 88 (Sup.1918), Ettinger v. Loux, 96 N.J.L. 522, 115 A. 384 (1921), and Martin Realty Co. v. Fletcher, 103 N.J.L. 294, 136 A. 498 (Sup.1927) — require nothing more than what the jury instructions in this ease required: a finding that Intercon was “entitled to compensation from LGIA pursuant to the specific terms of’ the Contract. (A. at 466) (emphasis added).
Moreover, the jury was never confronted even with the possibility that the Contract was silent as to this issue. The evidence, the arguments and the jury instructions all described the Contract as one containing a term addressing what was required to earn a commission. Neither of the parties argued (to the jury) that Inter-con was entitled to commissions that it had not earned under the Contract. In fact, despite Intercon’s inexplicable statements to the contrary in its brief to this Court, the jury was never confronted with a contract which was “silent as to the services required to earn a commission.” Vanguard, 900 F.2d at 651.
Even if the jury could have found that the Contract was silent as to the services required to earn a commission, however, the Vanguard presumption likely does not apply to oral contracts. As we explained in Vanguard, “the presumption is based on public policy intended to effectuate justice between the parties and is not intended to rewrite an agreement which the parties deliberately executed.” Id. The presumption allows courts to construe the express terms of a written contract without resorting to extrinsic evidence, with its many pitfalls, e.g., credibility. See Federal Marine Terminals, Inc. v. Worcester Peat Co., Inc., 262 F.3d 22, 28 (1st Cir.2001) (“[T]he effect of admitting extrinsic evidence would be to allow one party to substitute his view of his obligations for those clearly stated.”). In the case of an oral contract, as we explained in Vanguard, “we will be unable to construe it until we can determine what are its terms ... *688[which] is best left to a full trial and determination by the jury.” 900 F.2d at 650. Because the jury is already charged with probing the parties’ intentions and witnesses’ credibility in order to cobble together the terms of the oral contract, the Vanguard presumption would appear to serve no purpose.
We will not rewrite a contract or make a contract better for either party, see Vanguard, 900 F.2d at 651, and a Vanguard instruction would have interfered with the jury’s fair construction of the Contract. The decision not to give the instruction was not error, much less error so “fundamental and highly prejudicial” as to “result in a miscarriage of justice.” Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 136 (3d Cir.1997).
B. Good Faith and Fair Dealing
According the jury instructions, “LGIA asserts that one of the reasons Intercon is not entitled to a commission on its sales to Adelphia is because [LGIA] used another agent relating to its Adelphia sales.” (A. at 469.) Intercon argued that LGIA’s decision to hire a second agent did not excuse LGIA’s obligation to pay Inter-con a commission. The District Court, apparently intending to provide some legal underpinning for Intercon’s excuse argument, somewhat inexplicably agreed to employ language (and an instruction) outlining the covenant of good faith and fair dealing. Rather than giving what should probably have been a simple instruction about excuse, the Court gave a brief overview of good faith and fair dealing and the honesty requirement inherent in all contracts, and noted Intercon’s argument that “LGIA was not permitted to take any action to destroy Intercon’s rights under the parties’ contract.” (A. at 469.)
The District Court’s instruction provided a cleat' articulation of the appropriate legal standard: that it was up to the jury to determine whether hiring another agent excused LGIA from paying Intercon’s commissions. This instruction was surely not an error so plain that it “failed to provide the jury with adequate guidance and our refusal to consider the issue would result in a miscarriage of justice.” Ryder, 128 F.3d at 136.
Even if we were not on plain error review, a jury instruction constitutes reversible error only if it fails to “fairly and adequately” present the issues in the case without confusing or misleading the jury. Donlin v. Philips Lighting North America Corp., 581 F.3d 73, 79 (3d Cir.2009). Here, if the good faith and fair dealing language was incorrect, it arguably misstated a rule of law, and the instruction is subject to plenary review. Mosley v. Wilson, 102 F.3d 85, 94 (3d Cir.1996) (citations omitted). Even so, we would reverse only “if, looking at the charge as a whole, the instructions were capable of confusing and thereby misleading the jury.” Id. Here, the instructions as a whole are abundantly clear that the case was one about breach of contract and that liability could only attach if the juiy found that LGIA had breached its contractual promises to Intercon.
IV. Conclusion
We will affirm the order of the District Court.
. The complaint also included a cause of action for quantum meruit, which the District Court dismissed in its order partially granting LGIA's motion for summary judgment.
. LGIA misstates the amount of the verdict as $1,085,302.06, (LGIA Br. at 5), which is actually the amount of the final judgment, including pre-judgment interest. (A. at 1.)
. LGIA's argument that "any further objection by LGIA would have been rude to the Trial Court," (LGIA Reply Br. at 5), is somewhat belied by the fact that LGIA did indeed raise the issue again in its post-trial motions.
. LGIA’s briefing is self-contradictory. Its opening brief claims that the issue was first raised at the charge conference. (LGIA Br. at 4). Its reply brief states that "Intercon first asked the Trial Court to include a breach of good faith and fair dealing charge at the start of the trial.” (LGIA Reply Br. at 5). It appears, however, that the matter first came up at the charge conference when LGIA’s counsel said that the instruction would “be unfair” because "[w]e didn't have notice that there was going to be an argument ... that there was some breach of this implied covenant.” (App. at 415-16).
. In Inventive Music, unlike the case before us, the broker’s agreement was silent as to what was required to earn the commission. Further, Inventive Music was about a finder’s fee, rather than a sales commission, and it is not clear that New Jersey law treats the two categories as substantively analogous.
. The District Court applied New Jersey law, as do we. It is undisputed that New Jersey substantive law applies.
. Indeed, we admonished the parties in Vanguard Telecomm. v. S. New England Tel. Co., 900 F.2d 645, 651 (3d Cir.1990) for “inexplicably arguing oral contract theory” when the agreement in dispute was a written contract. Inventive Music involved an oral finder’s fee agreement which was silent as to the service required to earn a commission. In Arzoomanian v. British Telecomm., PLC, 2007 WL 132983 (D.N.J. Jan. 12, 2007), there was no contract at all, let alone a contract which spoke to the issue of what service was required to earn a commission.
. The District Court addressed this issue during the charge conference, explaining that the instruction was unnecessary (apparently as a logical matter) because LGIA already was arguing that Intercon was only entitled to commissions for those sales it procured.
. We presume “that juries follow instructions given by the District Court.” United States v. Hakim, 344 F.3d 324, 326 (3d Cir.2003).
. For example, in order ”[t]o overcome this presumption, an agreement must contain language which explicitly negatives the presumption. The contract language presented must be without qualification, and ... emphatic and specific in statement” and ”[a]bsent language which specifically abrogates the common law presumption, that presumption prevails; commissions will only be awarded to a broker who was the efficient cause of the sale.” Id. at 651.
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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/8475215/
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OPINION OF THE COURT
FISHER, Circuit Judge.
International Steel Services, Inc. (“ISSI”) appeals from an order of the District Court entering judgment against ISSI in favor of Steel Corporation of the Philippines (“SCP”) and an order denying ISSI’s motion for relief pursuant to Federal Rule of Civil Procedure 60(b). We -will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
ISSI, a Delaware corporation headquartered in Pittsburgh, Pennsylvania, and SCP, a Philippine corporation, entered into two separate contracts relevant to this litigation. Under the Acid Regeneration Plant Supply and Installation Agreement (“ARP Contract”), entered into on April 1, 1996, ISSI agreed to construct an acid regeneration plant for SCP. Under the Iron Oxide Sales Agreement (“IOSA Contract”), entered into on April 15, 1997, ISSI agreed to purchase the iron oxide byproduct of the plant. Both contracts contained the following arbitration provision:
“The validity, performance and enforcement of this Contract shall be governed by Philippine Laws. The parties agree that any dispute or claim arising out of this Contract shall be s[e]ttled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The proceedings on arbitration shall be conducted in Singapore. The arbitral award shall be final and binding on both parties.”
(App. at A-57.) Separate disputes arose under each contract.
On September 18, 2002, ISSI commenced a claim against SCP under the ARP Contract before the Construction Industry Arbitration Commission of the Philippines. The Commission issued an award of $150,000 in ISSI’s favor against SCP (“ISSI Award”) on August 20, 2003.
On May 5, 2003, SCP instituted a separate claim against ISSI under the IOSA Contract in the International Chamber of Commerce International Court of Arbitration in Singapore. On November 3, 2004, the arbitrator issued a final award of $647,965.50 in SCP’s favor against ISSI (“SCP Award”). The SCP Award contained the following provision:
“The applicable law of the arbitration proceedings is the Singapore International Arbitration Act. The validity, performance and enforcement of ... the [IOSA Contract is] governed by the laws of the Philippines.”
(App. at A-67.) ISSI has not petitioned for judicial review of this award in Singapore.
On August 19, 2004, ISSI filed a petition in the Philippines Regional Trial Court to vacate the SCP Award. Due to an alleged error in service that prevented SCP from receiving an order, on January 4, 2006, the Regional Trial Court declared SCP in default of ISSI’s petition to vacate, thereby allowing ISSI to present ex-parte evi*691dence. In response, SCP filed an Urgent Motion for Reconsideration. There is no evidence that the Regional Trial Court ever ruled on this Motion. Instead, a Notice of Pre-Trial indicates that the parties were to attend a pre-trial conference on April 18, 2007. (Addendum Exhibit A.) In an order of that same date, the Regional Trial Court referred the matter to mediation and stayed further proceedings. (Addendum Exhibit B.) The mediation failed.
Meanwhile, on September 13, 2005, ISSI moved to execute the ISSI Award in the Philippines. On July 17, 2007, the Philippine Court of Appeals, in an appeal by SCP, set aside the Award on the basis that ISSI was obligated to pay SCP the greater sum of $647,965.50 under the SCP Award. The Court of Appeals also noted that the Philippine Regional Trial Court, over which the Court has appellate jurisdiction, did not have jurisdiction to set aside the SCP Award. (App. at A-656.)
On January 19, 2006, SCP filed a Petition to Confirm the SCP Award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10,1958 (“New York Convention”), in the Court of Common Pleas of York County, Pennsylvania. Ultimately, the case was removed to federal court and transferred to the Western District of Pennsylvania. ISSI filed a motion for judgment on the pleadings, which the District Court denied on July 31, 2006.1 On July 31, 2007, after a discovery phase, the parties filed cross motions for summary judgment.
On February 6, 2008, the District Court denied ISSI’s motion for summary judgment, granted SCP’s motion for summary judgment, and entered judgment in SCP’s favor in the amount of $647,965.50.2 ISSI filed a motion for relief pursuant to Federal Rule of Civil Procedure 60(b) to reduce the judgment in the amount of $150,000 by offsetting the SCP Award by the amount of the ISSI Award. The District Court denied the motion on April 23, 2008. ISSI filed a timely appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 1294. “The District Court’s grant of summary judgment and judgment on the pleadings is subject to plenary review.” E.I. DuPont de Nemours & Co. v. United States, 508 F.3d 126, 131 (3d Cir.2007). This Court will “construe all facts and inferences in the light most favorable to the non-moving party, and ‘[jjudgment will not be granted unless the movant clearly establishes there are no material issues of fact, and he is entitled to judgment as a matter of law.’” Id. (citations omitted). Likewise, “[w]e review de novo the District Court’s interpretation of the [New York] Convention.” Admart AG v. Stephen & Mary Birch Foundation, Inc., 457 F.3d 302, 307 (3d Cir.2006). Finally, “[w]e review grants or denials of relief under Rule 60(b) ... under an abuse of discretion standard.” Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008).
III.
ISSI sets forth three arguments on appeal. First and foremost, ISSI contends that the District Court erred in holding that ISSI does not have a valid defense under either Articles V(l)(e) or V(2)(b) of the New York Convention, and thus that the Court erred in enforcing the SCP Award. In the alternative, ISSI argues that the District Court erred in refusing to offset the SCP Award by the smaller ISSI Award pursuant to Federal Rule of Civil *692Procedure 60(b)(5). We mil address each contention in turn.
A.
ISSI argues that under Article V(l)(e) of the New York Convention, the Philippine Regional Trial Court’s entry of default against SCP on ISSI’s petition to vacate the SCP Award precludes a United States court from enforcing the Award. The applicable language of Article V(l)(e) provides as follows:
“1. Recognition and enforcement of the award may be refused ... only if ...
(e) The award ... has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.”
Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. V(1), June 10, 1958, T.I.A.S. No. 6997, 21 U.S.T. 2517. To prevail, ISSI must demonstrate that the Philippines is a country with primary jurisdiction by showing that the Philippines is a country “under the law of which”3 the SCP Award was made.4 ISSI is unable to do so.
The Sixth Circuit held in M & C Corp. v. Erwin Behr GmbH & Co., KG that the Article V(l)(e) language “under the law of which” “ ‘refers exclusively to procedural and not substantive law, and more precisely, to the regimen or scheme of arbitral procedural law under which the arbitration was conducted.’ ” 87 F.3d 844, 848 (6th Cir.1996) (emphasis added) (quoting International Standard Electric Corp. v. Bridas Sociedad Anonima Petrolera, Industrial Y Comercial, 745 F.Supp. 172, 178 (S.D.N.Y.1990)); see also Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 290 (5th Cir.2004) (“Under the New York Convention, the rulings of the Tribunal interpreting the parties’ contract are entitled to deference.”). Since the SCP Award indicates that the arbitrator applied Singapore procedural law — “The applicable law of the arbitration proceedings is the Singapore International Arbitration Act” (App. at A-67) — Singapore, not the Philippines, is the country with primary jurisdiction.
In response, ISSI contends that the relevant question is not what procedural law the arbitrator applied, but what procedural law the parties agreed should be applied. However, even assuming, arguendo, that we look to the parties’ choice of procedural law, and not the law applied by the arbitrator, ISSI’s argument still fails, as ISSI has not demonstrated that the parties agreed in the IOSA Contract to an application of Philippine procedural law.
Although the Third Circuit has not addressed this issue, the Fifth Circuit held in Karaha Bodas Co., L.L.C. that “[ujnder the New York Convention, an agreement specifying the place of the arbitration creates a presumption that the procedural law of that place applies to the arbitration.” 364 F.3d at 291. The Fifth Circuit sensibly explained that any other presumption would be illogical:
“Authorities on international arbitration describe an agreement providing that one country will be the site of the arbitration but the proceedings will be held under the arbitration law of another *693country by terms such as ‘exceptional’; ‘almost unknown’; a ‘purely academic invention’; ‘almost never used in practice’; a possibility ‘more theoretical than real’; and a ‘once-in-a-blue-moon set of circumstances.’ Commentators note that such an agreement would be complex, inconvenient, and inconsistent with the selection of a neutral forum as the arbitral forum.”
Id. at 291 (footnotes omitted). We will apply the same presumption here. Accordingly, ISSI bears the burden of showing that Philippine procedural law, not forum procedural law, applies to the arbitration of the SCP Award.
ISSI’s primary argument in support of Philippine procedural law is that the parties necessarily agreed to an application of that law by stating in the IOSA Contract that “enforcement” of the Contract would be governed by Philippine law.5 This is insufficient. Given the difficulty Singapore would likely have in researching, deciphering, and applying another country’s procedural law, the use of the term “enforcement,” as opposed to the term “procedure,” cannot in and of itself create the “once-in-a-blue-moon set of circumstances” where the forum applies another country’s procedural law. Id. at 291.
The analogous facts of Karaha Bodas Co., L.L.C. support this determination. The litigation in Karaha Bodas Co., L.L.C. arose out of an arbitral award made in Switzerland regarding contracts negotiated and allegedly breached in Indonesia. Id. at 281. Like the instant case, the parties expressly agreed prior to arbitration that Switzerland would be the site of arbitration and that Indonesian substantive law would apply. Id. at 290. Based on these facts, the Fifth Circuit ultimately held that the Swiss tribunal properly applied Swiss procedural law.6 Id. at 293. Similarly, ISSI and SCP expressly agreed to use the substantive law of one country— the Philippines — while designating another country — Singapore—as the forum, but did not expressly agree to a specific country’s procedural law. Therefore, following the Fifth Circuit, we find that ISSI has failed to “rebut the strong presumption that designating the place of the arbitration also designates the law under which the award is made,” id. at 292, and thus that the Singapore International Court of Arbitration properly applied Singapore procedural law.
In summary, the Philippines is not a country with primary jurisdiction over the SCP Award, and the District Court did not err in holding that ISSI has no defense *694under Article V(l)(e) of the New York Convention.7
B.
Similarly, ISSI contends that under Article V(2)(b) of the New York Convention, enforcing the SCP Award would violate the fundamental principles of res judicata and judicial comity and would run contrary to the public policy against forum shopping in the United States. The relevant provision of Article V(2)(b) provides as follows:
“2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.”
Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. V(2), June 10, 1958, T.I.A.S. No. 6997, 21 U.S.T. 2517. ISSI argues that because the validity of the SCP Award was already pending in the Philippines, SCP’s attempt to enforce the Award in the United States was improper. Accordingly, ISSI asks that we defer to the courts of the Philippines and refrain from enforcing the Award.
ISSI’s claim is without merit. To start, we must review Article V public policy defenses narrowly. Admart AG, 457 F.3d at 308 (“courts have strictly applied the Article V defenses and generally view them narrowly”). “Enforcement of foreign arbitral awards may be denied [based on the New York Convention’s public policy defense] only where enforcement would violate the forum state’s most basic notions of morality and justice.” Parsons & Whittemore Overseas Co., Inc. v. Societe Generale de L’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir.1974). Here, ISSI’s contentions not only do not violate the public policy of the United States, but they contravene the very purpose of the New York Convention. “The principal purpose for acceding to the [New York] Convention was to ‘encourage the recognition and enforcement of commercial arbitration agreements in international contracts.’ ” Admart AG, 457 F.3d at 307 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)). Accordingly, parties may bring suit to enforce awards notwithstanding the existence of ongoing proceedings elsewhere. See Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi, 335 F.3d 357, 366-67 (5th Cir.2003) (“Under the [New York] Convention, a court maintains the discretion to enforce an arbitral award even when nullification proceedings are occurring in the country where the award was rendered. Furthermore, an American court and courts of other countries have enforced awards, or permitted their enforcement, despite prior annulment in courts of primary jurisdiction.”). See also Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d 15, 22 (2d Cir.1997) (“The [New York] Convention ... eradicated] the requirement that a court in the rendering state recognize an award before it could be taken and enforced abroad.”).
Applying the foregoing principles to the instant case, SCP was entitled to bring *695suit to enforce the SCP Award in the United States — where ISSI’s assets are located — even though a motion to vacate the SCP Award was pending in the Philippines. Enforcement of the SCP Award does not violate this country’s “most basic notions of morality and justice.” Parsons & Whittemore Overseas Co., Inc., 508 F.2d at 974. Therefore, the District Court did not err in holding that ISSI does not have an Article V(2)(b) public policy defense against enforcement of the SCP Award in the United States.
C.
Lastly, ISSI challenges the District Court’s denial of its motion to offset the SCP Award by the ISSI Award in the amount of $150,000 pursuant to Federal Rule of Civil Procedure 60(b)(5). Because the parties have since resolved this issue,8 we do not need to address it here.
IV.
For the foregoing reasons, we will affirm the orders of the District Court.
. The District Court also denied reconsideration of the motion on August 28, 2006.
. The District Court denied ISSI's motion for reconsideration on February 21, 2008.
. The SCP Award was made in Singapore; therefore, the Philippines is not a country "in which'' the Award was made.
. Since the Philippine Regional Trial Court never ruled on SCP's Urgent Motion for Reconsideration of the default judgment, but instead ordered mediation, it is questionable whether the SCP Award has indeed been "set aside or suspended.” However, as ISSI is unable to demonstrate that the Philippines is a country with primary jurisdiction, we need not reach this issue.
. ISSI attempts to buttress this argument with two additional points, neither of which has merit. First, ISSI argues that the Rules of Conciliation and Arbitration of the International Chamber of Commerce, and in particular Article 15(1), do not limit parties' choice of law. This argument does not help ISSI meet its burden because there is still insufficient evidence that ISSI and SCP actually chose Philippine procedural law over forum procedural law in the IOSA Contract.
Second, ISSI asserts that the deposition testimony of Abeto Uy, the President and Chairman of SCP, and Manuel Pamaran, SCP's expert witness on the application of Philippine law, indicates that SCP clearly understood that Philippine procedural law was to apply. However, contrary to ISSI's assertion, these depositions demonstrate only that Uy and Pamaran neither knew nor understood which procedural law governed the SCP Award.
. Karaha Bodas Co., L.L.C. was arguably a more difficult case. Unlike the instant facts, the parties' contract in Karaha Bodas Co., L.L.C. referenced certain Indonesian civil procedure rules. Nevertheless, the Fifth Circuit held that the procedural references “fall far short of an express designation of Indonesian procedural law necessary to rebut the strong presumption that designating the place of the arbitration also designates the law under which the award is made.” 364 F.3d at 292.
. Although certainly not dispositive, it is worth noting that the Philippine Court of Appeals has also stated, albeit in dicta, that the Philippine Regional Trial Court did not have jurisdiction to set aside the SCP Award. (App. at A-656.)
. The parties agreed at oral argument to offset the Awards. Their subsequent stipulation provides, "the Philippine arbitration award in favor of ISSI may be offset against and deducted from the Singapore arbitration award and from the judgment entered in this action in favor of SCP.” The agreement calculates the SCP and ISSI Awards, together with interest and costs through October 31, 2009, at $789,427.10 and $281,839.57, respectively. The parties will resolve the continuing calculation of interest after October 31, 2009.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Appellant Gary Harkins apjDeals an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment in favor of Appellees United States Steel Corporation (“U.S. Steel”)1 and United Steelworkers of America, Local Union 4889 (“USW”) on his claim under § 301 of the Labor Relations Management Act, 29 U.S.C. § 185. Har-kins claims that U.S. Steel violated the collective bargaining agreement when it denied him an advancement opportunity and gave it instead to Thomas Mulé. More particularly, he says that because he is more qualified for the position than Mulé and has more seniority, it was wrong for U.S. Steel to give Mulé the job. Har-kins also claims that USW breached its duty of fair representation by mishandling the grievance he filed with USW after U.S. Steel denied him the position. Because there are no genuine issues of material fact and Appellees are entitled to judgment as a matter of law, we will affirm.
I. Background
A. U.S. Steel, USW, and the Collective Bargaining Agreement
U.S. Steel owns and operates steelmak-ing plants, including the Fairless Works facility in Fairless Hills, Pennsylvania. USW is a local union of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Sendee Workers International Union, and represents hourly production and maintenance workers at U.S. Steel’s Fairless Works plant.
On May 20, 2003, U.S. Steel and USW entered into a collective bargaining agreement, which they refer to as the 2003 Basic Labor Agreement (“BLA”). The BLA governs the process for awarding jobs within the Fairless Works plant. Pursuant to § E.7 of the BLA, when a job becomes available, U.S. Steel must post a bid sheet throughout the plant, and employees can apply for the job by signing the bid sheet. U.S. Steel awards the bid in accordance with § E.l.c of the BLA, which states:
In all cases of promotions, decreases in force and recalls after layoffs, the following factors shall be considered:
(1) ability to perform the work and physical fitness; and
(2) Plant Continuous Service (Plant Service).
Where factor (1) is relatively equal between employees, Plant Service shall be the determining factor.
(App. at 221.) Thus, when multiple employees apply for the same position, U.S. Steel first considers the relative ability of each employee to perform the work, and the most qualified employee is awarded the position, regardless of seniority. Only when the abilities of competing employees are relatively equal does seniority become the determining factor.
B. Walter Hartel and Job Bid No. GH-2006-02
Walter Hartel was a systems repairman who held the title of Maintenance Technician (Electrical) and was one of the most knowledgeable and experienced employees in the “Galvanized Line” Maintenance Department at the Fairless Works plant. Hartel was particularly known for his expertise in electronics. When the managers of the Maintenance Department learned, in *701early 2006, that Hartel would soon be retiring, they conveyed to Susanna Show, the Staff Supervisor of Personnel, and Preston Henderson, the Manager of Employee Relations, the importance of replacing Hartel with someone having significant electronics experience. Accordingly, when U.S. Steel sought to replace Hartel by posting Job Bid No. GH-2006-02 for the position of “Maintenance Technician (Electrical),” the bid sheet stated that “EMPLOYEE MUST HAVE ELECTRICAL/ELECTRONIC EXPERIENCE.” Harkins and Thomas Mulé were among the four employees who signed the bid sheet.
C. Qualifications of Mulé and Harkins
1. Thom,as Mulé
Thomas Mulé is a member of the USW and was hired by U.S. Steel in 1987 as an Electronic Repairman. When Mulé was hired, he was required to take the systems repair test as an prerequisite for the Electronic Repairman job. The systems re-pah1 test assesses knowledge of electronics and electrical subjects, motors, instrumentation, and physics. At the time, U.S. Steel had two groups of electronics related repairmen positions: the Electronic Repairman, and the Instrumentation Repairman. In 1988, U.S. Steel decided to merge the two positions. Thus, the Instrument Repairmen were cross-trained to learn electronics repairs and the Electronic Repairmen were cross trained to learn instrument repairs. Once the individuals had training and knowledge in both areas, the groups were formally merged into one group called Systems Repairmen. In order to become a Systems Repairman at that time, all employees had to take the systems repair test.
Mulé worked as a Systems Repairman until 1991, when he was laid off. He was recalled in 1994 and again worked in that same position. During both of those periods with U.S. Steel, Mulé worked in the Maintenance Department with Walter Hartel. Mulé was again laid off in 2001. At the time of his layoff, he was a Systems Repairman and had worked as such during the entire length of his employment with the exception of the short period of time when he initially worked as an Electronic Repairman.
2. Gary Harkins
Harkins is also a member of the USW and began his employment with U.S. Steel in 1973. At the time Harkins applied to be considered for Job Bid No. GH-2006-02, he was an Operating Technician with significant electrical expeiience but limited electronics experience, and he had never worked as a Systems Repairman. Early in his career at the Fairless Works facility, Harkins worked on the production line in the sheet and tin division. From 1989 through 1990, he attended the Electrical Learners Program at Bucks County Community College, where he took classes entitled Principles of Electronics, Industrial Electronics, Introduction to Digital Systems, Electronic Circuits, and Electrical Circuit Analysis. Harkins became a Motor Inspector on the so-called “Pickle Line,” where his responsibilities included repairs, preventative maintenance, and “[a]ny and all jobs electrical.” (App. at 20.) He also did some electronics work at the plant.
Harkins has never worked as an Electronic Repairman, Instrument Repairman, or as a Systems Repairman. Furthermore, Harkins never worked in the Maintenance Department with Walter Hartel. Harkins passed the op-teeh test, but has never taken the systems repair test. The op-tech test differs significantly from the systems repair test in that it measures electrical ability, whereas the systems repair test measures electronics ability, *702which, according to the record, is a distinction with a difference.
D. U.S. Steel Awards Bid to Mulé
On February 21, 2006, U.S. Steel announced that it had awarded Job Bid No. GH-2006-02 to Mulé. The decision to award the bid to Mulé was made by Preston Henderson, the company’s Employee Relations manager. Based upon his knowledge of Harkins’s work history and Mulé’s work history, Henderson believed that Harkins had a small amount of electronics experience, but that Mulé “had significant electronic experience.” (App. at 82.) Indeed, Mulé had previously worked in that field with Mr. Hartel, the man being replaced. In comparing Mulé’s and Harkins’s experience, Henderson felt that Mulé had significantly greater relevant experience than Harkins. Given the impending departure of Mr. Hartel and the need to replace him with someone who had electronics experience, Henderson determined “Mulé fit that bill.” (Id.) Therefore, on February 21, 2006, Job Bid No. GH-2006-02 was officially awarded to Mulé.
After the bid was awarded, Harkins approached USW about filing a grievance based on his seniority and his belief that he was at least as qualified for the position as Mulé. The USW filed a grievance on Harkins’s behalf on February 27, 2006, which was denied by management at U.S. Steel at steps one and two of the grievance procedure outlined in the BLA. U.S. Steel maintained that Mulé’s qualifications were superior to those possessed by Harkins. At that point in the grievance proceedings, USW believed it could not win in arbitration without more evidence of Harkins’s qualifications. Therefore, in an attempt to show that Harkins did in fact possess electronics knowledge comparable to that of Mulé’s, USW proposed to U.S. Steel that Harkins be allowed to take the systems repair test. Harkins has not taken the test, and USW has not taken any further action on the grievance, again due to its belief that it would be unsuccessful in arbitration without further evidence of Har-kins’s qualifications.
E. Procedural History
On December 10, 2007, Harkins filed the complaint in this case against U.S. Steel and USW under Section 301 of the Labor Management Relations Act (the “Act”), 29 U.S.C. § 185. Harkins alleges that U.S. Steel breached the BLA by giving Mulé the job over him and that USW breached its duty of fair representation by mishandling his grievance. Following discovery and briefing, the District Court granted summary judgment in favor of U.S. Steel and USW. The Court concluded that a reasonable jury could not find that a breach of the BLA had occurred. Consequently, the Court found it unnecessary to decide whether USW had handled Har-kins’s grievance properly. Harkins filed a motion for reconsideration, which the District Court denied. Harkins filed this timely appeal on February 25, 2009.
II. Discussion2
We exercise plenary review over an appeal from a grant of summary judgment, which means we apply the same standard used by the District Court. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir.2001). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. Proc. 56(c)). “In making this determination, we *703must consider the evidence in the record in the light most favorable to the nonmoving party.” Id.
As this case involves both a claim for breach of a collective bargaining agreement against an employer and a claim for breach of the duty of fair representation against the union, it is considered a hybrid claim under Section 301 of the Act. Del-Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Harkins cannot prevail against either U.S. Steel or USW on his hybrid claim unless he can prove both that U.S. Steel violated the collective bargaining agreement and that USW breached its duty of fair representation. Id. at 164-65, 103 S.Ct. 2281.
The District Court properly concluded that Harkins did not produce enough evidence to allow a reasonable jury to find that U.S. Steel had breached the BLA. The evidence shows that U.S. Steel was looking to replace Hartel with someone who had significant knowledge and experience in the electronics used at the plant. The record plainly demonstrates that Mulé had greater electronics knowledge and experience than Harkins. For example, unlike Harkins, Mulé had been a Systems Repairman, worked under the supervision of Hartel, and passed the systems repair test. Although Harkins had taken electronics courses through U.S. Steel’s Electrical Learner’s Program, he has never worked as a Systems Repairman, never worked under the supervision of Hartel, and has never passed the systems repair test. Thus, despite an admirable investment of time and effort to learn about electrical and electronics issues, Harkins qualifications in electronics were not equal to Mulé’s. Because the BLA specifies that seniority comes into play only when the abilities of the two employees are relatively equal, the District Court correctly concluded that a reasonable jury could not decide that U.S. Steel violated the BLA by awarding the bid to Mulé over Harkins. In light of that conclusion, the District Court was also right in saying that there was no need to address whether USW breached its duty of fair representation to Harkins. The failure on the first part of Harkins’s hybrid claim is fatal to the entirety of it.
III. Conclusion
We will therefore affirm the judgment of the District Court.
. According to U.S. Steel’s Corporate Disclosure Statement, the case caption had incorrectly identified it as USX Corporation. We have corrected the caption accordingly.
. The District Court had jurisdiction pursuant to the Labor Management Relations Act, 29 U.S.C. § 185 and 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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OPINION
PER CURIAM.
Petitioner Yan Liu is a native and citizen of China who entered the United States in March 2005. Liu was served with a Notice to Appear charging her with being subject to removal pursuant to Immigration and Nationality Act § 212(a)(7)(A)(I).
In January 2006, Liu applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In support of her application, Liu alleged that she left China because two men attempted to rape her and took pictures of her without her top on. Liu’s father was apparently able to intervene in the attack, but was then assaulted himself for a period of fifteen minutes. Liu further alleged that when she reported the attack to the police, they did not investigate her case. She contends that she heard that one of the assailants had a relative in the police department. She contends that after the attack, her attackers sent her a threatening letter. They also approached her on a bus and threatened her again. Liu testified that they posted naked pictures of her at her school. Approximately ten months after the assault, Liu departed China for the United States. The Immigration Judge (“IJ”) denied Liu’s applications for relief, concluding that she did not qualify for asylum because she was the victim of *705an attack by criminals and had not been targeted on account of a protected ground. The IJ reasoned that it was “expanding the asylum law a little too far” to include every woman who had been the victim of an attempted rape or humiliating photographs by “criminals.” (A.R. at 52.) The IJ stated that he did not find Liu’s attempt to qualify for asylum on the ground that one of her attackers had “some connection” to the police “persuasive.” (Id.) Specifically, the IJ found that her testimony was inconsistent concerning when she knew that the assailant “Ah Hu” was connected to the police. Liu appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed, agreeing with the IJ that, even if Liu were deemed credible, she failed to sustain her burden of proof applicable to asylum and the more stringent burden applicable to withholding of removal. The BIA concluded that the alleged incidents did not rise to the level of persecution on account of a protected ground and that the record did not support her claim that she has a well-founded fear of persecution. The BIA also rejected Liu’s claim for relief under the CAT.
Liu filed a timely petition for review in the Second Circuit. The petition was transferred to this Circuit. We have jurisdiction over her petition pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s determinations if they are supported by reasonable, substantial and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, “the BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
To be granted asylum, Liu must show that she is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Liu must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in China based on one of these protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief under the CAT, Liu must demonstrate that it is more likely than not that she would be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
Liu argues that the BIA erred when it reasoned that the “alleged incidents do not rise to the level of persecution on account of a protected ground.” (A.R. at 2.) Liu, however, has offered no arguments that would undermine this conclusion. She argues only that the facts of the case are “unclear” as to whether she was attacked based on a protected ground. (Appellant’s Br. 14-15.) She makes similar arguments with regard to her well-founded fear of future persecution and whether she belongs to a particular social group. (Id. at 16, 17.) If the facts are unclear, however, the IJ and BIA properly denied her petition as it is her burden to establish eligibility for relief. See Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003) (applicant has burden of showing that the persecution was on account of the applicant’s race, religion, nationality, membership in a particular social group, or political opinion).
Moreover, aside from pointing to general country conditions in China, Liu did not produce evidence that it is more likely than not that she would be tortured by or at the acquiescence of Chinese officials if she returned to China. Therefore, *706she is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc).
For the foregoing reasons, we will deny her petition for review.
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SUMMARY ORDER
Plaintiff Denise M. Merritt, ‘pro se, brought claims against both defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging wrongful termination, disparate treatment, and retaliation. The United States District Court for the Eastern District of New York (Mauskopf, J.) granted summary judgment in favor of defendants. Merritt v. New York City Transit Auth., No. 06 Civ. 5548, 2008 WL 4508258 (E.D.N.Y. Sept. 30, 2008). We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Having conducted a de novo review of the record, we find each of plaintiffs arguments to be without merit and affirm for substantially similar reasons as those stated by the district court. Accordingly, the order of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Appellant B & M Investment LLC (“B & M”) seeks review of two orders of the district court (Droney, J.) affirming Bankruptcy Court decisions that (1) denied its second motion for relief from stay; and (2) overruled its objections to the debtor’s motion to determine secured status and confirm the plan. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
*512B & M Investments LLC held a mortgage from Michael Calise. Calise failed to make the required mortgage payments, and B & M commenced a foreclosure action in Connecticut state could. B & M obtained a judgment of strict foreclosure in Connecticut Superior Court. Four days before the foreclosure was finalized, Calise filed for protection from his creditors pursuant to Chapter 11 of the Bankruptcy Code. B & M filed for relief from the automatic stay in August, 2000. The motion was set down for a hearing, and just before that hearing took place the parties entered into a settlement agreement resolving the motion, which was “so ordered” by the Bankruptcy Court. The terms of the settlement agreement called for Calise to make monthly adequate protection payments of $10,000 to B & M and pay post-petition property taxes, until confirmation or dismissal, in exchange for an extension of the automatic stay.
On March 7, 2002, this Court issued its decision in In re Canney, 284 F.3d 362 (2d Cir.2002). Canney, which involved a Vermont strict foreclosure, clarified the law regarding the interplay between the Bankruptcy Code’s stay provisions and strict foreclosure law. In a “strict foreclosure,” the property is not sold. Instead, when a borrower defaults on a mortgage loan, the mortgagee obtains a foreclosure judgment. At that time, the court sets a deadline by which the borrower must pay off the mortgage debt, known as the redemption period. If the borrower fails to redeem the property by the deadline, the lender receives immediate rights to the property. See, e.g., Provident Bank v. Lewitt, 852 A.2d 852, 84 Conn.App. 204 (Conn.App.Ct.2004). Prior to Canney, the courts were mixed as to which stay provision of the Bankruptcy Code applied to extend the redemption period-the 60-day stay set forth in 11 U.S.C. § 108(b), or the indefinite stay provision set forth in 11 U.S.C. § 362(a). Canney holds that Section 108(b) applies. Canney, 284 F.3d at 373. As part of its analysis, the Canney court held that once the foreclosure judgment issues, “full legal and equitable title to the property” reverts to the mortgagee. Id. at 369-70.
On April 11, 2002, B & M filed a second motion for relief from the stay, contending that Canney changed the law, and Calise no longer had any interest, legal or equitable, in the property. The Bankruptcy Court denied the motion, finding that B & M was bound by the settlement stipulation, and that res judicata barred relitigation of the motion for relief from the stay. B & M appealed that order, and the decision was upheld by the District Court.
On August 18, 2006, the Bankruptcy Court entered an order confirming Calise’s reorganization plan, ruling B & M was a secured creditor under the Plan. The Plan called for Calise to pay B & M’s claims in full on the effective date of the plan, and that upon full payment of B & M’s claims, its lien on the property would be satisfied and discharged.
After the plan was confirmed, Calise commenced repayment according to the plan’s terms. Calise obtained a $2.2 million loan using the property as collateral, and on the plan’s effective date, Calise tendered a check to B & M for $1.6 million, the full extent of its obligation under the plan. B & M did not cash the check. In addition, Calise paid in full the claims of some classes of creditors.
The district court properly affirmed the Bankruptcy Court’s findings. Settlement agreements are considered “a final judgment on the merits,” and thus can support a finding of res judicata. Greenberg v. Bd. of Governors of Fed. Reserve Sys., 968 F.2d 164, 168 (2d Cir.1992). In determining the preclusive effect of a settlement agreement, a court looks to the intent of the parties entering *513into the settlement. Id. B & M argues that it never intended to relinquish its claim to the property as a result of extending the debtor’s redemption period. However, by stipulating to extend the stay through the time the plan was confirmed or the complaint dismissed, B & M (1) held itself out as a secured creditor of the estate; and (2) accepted the tolling of the expiration of the debtor’s period for redemption in exchange for adequate protection payments of $10,000 a month — the exact issues B & M tried to re-litigate in its second motion for relief from stay.
Moreover, it would simply be inequitable to permit B & M to change its position at this time. B & M accepted roughly $700,000 from Calise pursuant to the settlement agreement it now seeks to set aside. In reliance on the settlement agreement, Calise created a plan accepted by the Bankruptcy Court and ultimately tendered to B & M the amount due and owing under that plan. Calise also paid other creditors, using proceeds from a new loan secured, in part, using the property as collateral. As applied in bankruptcy cases, the doctrine of equitable mootness is an prudential one, used to dismiss an appeal “as moot when, even though effective relief could could conceivably be fashioned, implementation of that relief would be inequitable.” Deutsche Bank AG v. Metromedia Fiber Network (In re Metromedia Fiber Network, Inc.), 416 F.3d 136, 143 (2d Cir.2005) (quotation marks omitted). “The doctrine is therefore invoked to avoid disturbing a reorganization plan once implemented, and can be applied in two situations: [w]hen an unstayed order has resulted in some comprehensive change in circumstances, and when a reorganization is substantially consummated.” In re Source Enterprises Inc., 392 B.R. 541, 547 (S.D.N.Y.2008) (internal quotation and citation omitted). While B & M did seek a stay of the confirmation order, it did not seek a stay in this court, and did not move for an expedited appeal. Indeed, the docket sheet reflects that B & M sought multiple extensions of its time to file this appeal. To undo the settlement agreement and permit B & M to seize the property would undo the entire Plan, an action equity will not tolerate.
Finally, a settlement agreement— even a “so ordered” settlement agreement-is a contract between the parties, and represents “a compromise between conflicting claims.” Hatalmud v. Spellings, 505 F.3d 139, 146 (2d Cir.2007); see also In re Connaught Properties, Inc., 176 B.R. 678, 684 (BR D.Conn.1995) (“court-approved settlement agreements, though reduced to judgment in some cases, represent not the court’s own judgment or that of a jury, but rather the parties’ compromise of the lawsuit put in writing”). In this Circuit, it is well settled that “a change in law does not render an agreement void.” Anita Foundations Inc. v. ILGWU Nat’l Retirement Fund, 902 F.2d 185, 189-90 (2d Cir.1990). B & M had the option to have a hearing on the issue of whether or not the stay should be lifted, and instead of litigating the issue chose to enter into a settlement agreement with Calise. Having made that decision, B & M is bound by it.
We have examined the remainder of B & M’s claims and we find them without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.
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SUMMARY ORDER
Plaintiff Annapolis Shipping Company Limited appeals from a February 23, 2009 order of the District Court. While this appeal was sub judice, we decided Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir.2009), in which we overruled Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir. 2002), and held that electronic fund transfers being processed by intermediary banks are no longer subject to attachment under Rule B. In another recent decision, Hawknet, Ltd. v. Overseas Shipping Agencies, No. 09-2128-cv, 587 F.3d 127, 2009 WL 3790654 (2d Cir. Nov.13, 2009), we held that our decision in Shipping Corp. of India applies retroactively. Accordingly, we VACATE the District Court’s order and REMAND the matter to the District Court with instructions to enter an order to show cause why it should not dismiss the complaint for lack of personal jurisdiction in light of these recent decisions.
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SUMMARY ORDER
This multi-district litigation involves wrongful death claims brought by surviv*587ing family members of passengers of Gol Linhas Inteligentes S.A. Boeing 737-800 Flight 1907, which crashed in the Amazon rainforest on September 29, 2006, killing all on board. Plaintiffs in this action are Brazilian citizens and residents. The decedents they represent were also Brazilian citizens and residents at the time of their death. Plaintiffs appeal the grant of a motion to dismiss on grounds of forum non conveniens, entered on July 2, 2008. In re Air Crash Near Peixoto De Azeveda, Brazil, on Sept. 29, 2006, 574 F.Supp.2d 272, 275 (E.D.N.Y.2008). We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
For substantially the reasons stated in the decision of the district court, we affirm. It is by now well-established that “[t]he fomm non conveniens determination is committed to the sound discretion of the trial court.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). We will reverse “only when there has been a clear abuse of discretion.” Id. When, as in this case, the “court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Id.
The district court properly determined the degree of deference owed to Plaintiffs’ choice of forum. In re Air Crash Near Peixoto, 574 F.Supp.2d at 282; see Iragorri v. United Techs. Corp., 274 F.3d 65, 71-72 (2d Cir.2001). The district court was well within its discretion in concluding that Brazil is an available and adequate alternative forum. In re Air Crash Near Peixoto, 574 F.Supp.2d at 284-85; see Piper, 454 U.S. at 255 n. 22, 102 S.Ct. 252. Finally, the district court thoroughly assessed the private and public interest factors attending a forum non conveniens determination, and properly found that “the important factors of lack of jurisdiction in this forum over potentially liable parties and the lack of compulsory process over witnesses and evidence in Brazil, together with other considerations, swing the balance sufficiently to make this forum genuinely inconvenient and a Brazilian forum significantly preferable.” In re Air Crash Near Peixoto, 574 F.Supp.2d at 289 (internal quotation marks omitted); see also Iragorri, 274 F.3d at 73-75.
The district court made its dismissal on forum non conveniens grounds subject to several conditions enumerated in its opinion. In re Air Crash Near Peixoto, 574 F.Supp.2d at 290. In addition to those conditions, which remain operative, Defendants have agreed that the Pilot Defendants, Joseph Lepore and Jan Paul Paladi-no, will submit to videotaped depositions in the United States, and that Defendants will not object in Brazilian proceedings to the admissibility of those depositions on the basis, of either (1) the fact that the depositions were conducted in the United States, or (2) the format of the testimony.
The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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OPINION
PER CURIAM.
Shawn Wright appeals the District Court’s order granting appellees’ motions to dismiss. For the reasons below, we will affirm the District Court’s order.
The procedural history of this case and the details of Wright’s claims are well known to the parties, set forth in the District Court’s thorough opinion, and need not be discussed at length. Briefly, Wright asserted that the Drug Enforcement Agency (DEA) and Agent Evans forced him to work with the Salem County Prosecutor’s Office (SCPO) even after his identity as an informant was exposed and allowed the SCPO to prosecute his drug suppliers in violation of an oral agreement that they would be prosecuted in federal court. Wright argued that he was identified as an informant in newspaper articles and forced to continue working as an informant even after it was clear that the investigations were dangerous. Appellees filed motions to dismiss, and the District Court appointed Wright counsel. After the District Court granted the motions to dismiss, Wright filed a pro se notice of appeal.
Because appellee Spinelli has dismissed his cross-claims, Wright’s notice of appeal has ripened, and we have jurisdiction under 28 U.S.C. § 1291. Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983)(premature notice of appeal becomes effective upon dismissal of outstanding cross-claims). We exercise plenary review over the District Court’s order granting appellees’ motions to dismiss. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir.1998).
Wright did not give any details on the investigations he was involved in or how he was placed in danger. He does not explain how he was “forced” to continue working as an informant alter his identity *610was exposed. We note that while represented by counsel at his plea hearing in December 2004 and his sentencing in January 2006, he made no complaints of any such force. Wright presumably continued to cooperate in the hopes of receiving a sizable downward departure. And he did. As a result of his cooperation, Wright was sentenced to six years in prison, far below the guidelines sentence of thirty years to life.
As for any agreement to prosecute his drug suppliers in federal court, no citizen has a right to insist on the initialization of criminal proceedings. Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Wright does not allege that he was housed in the Salem County jail at the same time as the drug suppliers; he alleged only that he had “strong ties and co-defendants” there.
Wright’s claims concerning the July 2004 and October 2004 newspaper articles are untimely.1 While Wright argued in the District Court that his claims were brought within the six-year statute of limitations for contract claims, he also argued that he had established a constitutional violation. Claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). We have held that New Jersey’s two-year limitations period on personal injury actions, N.J.S.A. 2A:14-2, applies to civil rights claims under § 1983. Cito v. Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir.1989). Thus, the complaint, filed in August 2007, was untimely with respect to the July and October 2004 articles.
In the article published on August 5, 2005, the author noted that the drug suppliers had been indicted and one had been the supplier for Wright who was awaiting sentencing. The SCPO was named as the source for the fact that the drug suppliers were arrested at the rest stop where they normally met Wright. While the complaint is timely as to the publication of the August 5, 2005 article, the allegations are not sufficient to state a claim.
A state-created danger claim has four elements. First, Wright must show that the harm caused was foreseeable and direct. Next, appellees must have acted with a degree of culpability that shocks the conscience. Wright must have been a foreseeable victim, and, finally, appellees must have affirmatively used their authority to create a danger to Wright. Walter v. Pike County, Pa., 544 F.3d 182, 192 (3d Cir.2008).
Despite Wright’s allegations to the contrary, the August 2005 article did not expose Wright’s location or give specific details concerning his actions as a confidential informant. The author of the article merely identified one of the men arrested as the drug supplier for Wright who was awaiting sentencing in federal court. Wright appears to argue that the drug suppliers did not know his real name; thus, the publication of his name put him in danger. Wright has not alleged any actual harm he has suffered from the disclosure of his identity. He does not allege that he has received any threats from the drug suppliers. Wright has also not made any specific allegations supporting his contention that appellees acted with a degree of culpability that *611shocks the conscience. He has alleged nothing indicating that the disclosure of his name to the press was anything more than negligent. Moreover, Wright agreed to testify at trial if needed; thus, the potential exposure of his identity was anticipated by the plea agreement.
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by the District Court, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.
. In the July 2004 article, it is noted that appellee Spinelli received an award for his police work, including dismantling Wright’s drug organization. In an October 7, 2004, article, it was reported that Wright "had provided information to authorities implicating his former associates.”
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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/8475186/
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OPINION OF THE COURT
SCIRICA, Chief Judge.
S.A. Holding Co., L.L.C., Delilah’s Den of S.A., Inc., and 86 Broad St. Corp. (collectively here, “debtors”), and the City of South Amboy, New Jersey (“the City”) have been engaged in litigation for over a decade in both state and federal court regarding debtors’ operation of a sexually oriented business on their property in South Amboy. Before us is one installment of this litigation. As we write primarily for the parties, we need not recount in full the factual and procedural history of this case. In 1998, debtors and the City entered into a Settlement Agreement to resolve the suits on this matter then pending between them; in 2001 the parties amended this agreement. The dispute before us centers around the terms of this Amended Settlement Agreement (“the Agreement”) and the parties’ performance of their respective obligations thereunder. The Agreement provides, in relevant part:
1. [Debtors] abandon the otherwise permitted “go-go” bar use, the nightclub use, all sexually oriented business uses,
... and all other related uses at the Premises in exchange for a 24 month extension of the current sexually oriented business use at the Premises. The aforesaid uses at the Premises shall forever cease, are deemed abandoned and are unlawful uses at the premises, except for the current extended use, which, at the conclusion of the 24 month extension shall likewise cease, be deemed abandoned and an unlawful use at the Premises....
*6123. The subject property will be designated as a redevelopment area and subject to a redevelopment plan.
In 2003, the City filed suit against debtors in the Superior Court of New Jersey seeking to compel closure of debtors’ business, which had continued to operate beyond the 24-month window provided in the Agreement. Debtors contended they were not required to close because the City had failed to perform its obligations under the Agreement. While this litigation was proceeding in the state-court system, debtors filed voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code in the United States Bankruptcy Court for the District of New Jersey. With the consent of debtors and the City, the Bankruptcy Court issued an order (“the Abstention Order”) stating, inter alia, that it would “abstain from hearing ... those issues that were before the State Court ... prior to the Petition Date,” and preliminarily enjoining the City “from shutting down the Debtors’ business pending entry of a final non-appealable order from the trial or appellate court(s) of competent jurisdiction resolving all issues between the parties in the Litigation.” The Abstention Order also provided that, “[njotwithstanding the foregoing, nothing herein shall be deemed to prohibit [the City] from moving before the Bankruptcy Court at any time, after notice and a hearing to the Debtors and all parties in interest, and for good cause shown, to modify, vacate or dissolve the injunction issued pursuant to this Order.”
Two months after entry of the Abstention Order, debtors filed a motion with the Bankruptcy Court to reject the Agreement under 11 U.S.C. § 365(a), which provides “the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.” According to debtors, the Agreement remained executory at the time of their bankruptcy filing because the City had failed to implement a redevelopment plan that placed their property in a high-density residential zone, which debtors claim the parties contemplated as part of the “redevelopment plan” promised in the Agreement. The Bankruptcy Court denied debtors’ motion, finding that “the City did not have any substantially unperformed obligations under the Agreement at the time of the bankruptcy filing; consequently, the Agreement is not executory and subject to rejection.” Namely, the court found “[t]he Agreement between the Debtors and the City is simple, straightforward and unambiguous on its face. Nothing contained therein lends support to the Debtors’ contention that the Agreement remained an executory contract at the time the petition was filed because the City failed to perform by granting the Debtors ‘enhanced development rights’ when it established and placed the Debtors’ real property in a redevelopment zone.”
The City then moved to compel debtors to close their business in accordance with the terms of the Agreement. The Bankruptcy Court construed this as a motion to modify the Abstention Order, as that order permits. The court granted the motion, noting that it “regard[ed] the contract as not being executory, having been fully performed by the City, and, therefore, the debtor having substantial number of years long past its obligation to cease certain types of operations^] ... it’s time” to close debtors’ business.
Debtors appealed both the Bankruptcy Court’s denial of their motion to reject the Agreement under 11 U.S.C. § 365(a) and its order compelling closure of debtors’ business. The District Court denied both of these appeals. The court found that, to the extent the City might have been obligated under the Agreement to place debt*613ors’ property in a high-density residential zone, its failure to do so would not “constitute! ] a material breach of the Amended Settlement Agreement” such that the Agreement could be deemed executory as a result of it. The court noted that, “for purposes of [its] analysis as to whether the Amended Settlement Agreement is an ex-ecutory contract, ... there was not a ‘reasonable expectation’ of [placement in a high-density residential zone],” and that “[a] simple real estate assessment could determine the difference, if any, in monetary value between the Property as currently zoned, and the value of the Property had the City placed it in a high density redevelopment zone, if the fact-finder later decides that the parol evidence [proffered by the parties] so alters the express contractual language of the Amended Settlement Agreement.” The court also found that the Bankruptcy Court did not abuse its discretion in modifying the Abstention Order and granting the City’s motion to compel closure of debtors’ business, as it did so “in accordance with the procedures set forth in the Abstention Order.” Accordingly, the District Court ordered debtors’ business to be closed, and remanded to the Bankruptcy Court the following issues: “(1) whether it or the state court shall decide on the merits the actual terms of the Amended Settlement Agreement, and the related question of what weight, if any, to give to the proffered parol evidence; (2) whether the City has failed to fully perform its obligations pursuant to the Amended Settlement Agreement; (3) what, if any, relief shall be awarded to Debtors; and (4) whether there should be any offsets to any damages award as a result of the continued operation of Delilah’s Den for nearly 4 years beyond the Consent Closure Date.”
Debtors appeal both the District Court’s determination that the Agreement is non-executory and its approval of the Bankruptcy Court’s order compelling closure of debtors’ business. The City cross-appeals the District Court’s remand, contending the court should have found that the City has fully performed under the Agreement and that consideration of parol evidence would be unnecessary and improper in making this determination.1 Substantially for the reasons set forth by the District Court, we will affirm the denial of debtors’ motion to reject the Agreement and the grant of the City’s motion to compel closure of debtors’ business. With respect to the parties’ potential entitlement to monetary relief under the Agreement, we will remand to the Bankruptcy Court for further proceedings consistent with the opinion of the District Court.
. We have jurisdiction under 28 U.S.C. § 158(d)(1); we believe, and the parties do not dispute, that the District Court’s remand of certain issues to the Bankruptcy Court does not undermine our jurisdiction in this case. See Buncher Co. v. Official Comm. of Unsecured Creditors of GenFarm Ltd. P'ship IV, 229 F.3d 245, 249-50 (3d Cir.2000).
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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/8475187/
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Craig T. Bailey (“Bailey”) appeals from the District Court’s order affirming a final administrative action of the Commissioner of Social Security (the “Commissioner”). The appeal is limited to the Commissioner’s decision to deny benefits prior to July 15, 2002. The District Court exercised jurisdiction over this matter pursuant to 42 U.S.C. § 405(g), and we have appellate *615jurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we will affirm.
I. Background
Appellant Craig T. Bailey was injured in a car accident in 1989, and consequently underwent surgical fusion of three vertebrae. In addition to continuing neck stiffness and pain resulting from this injury, in subsequent years he has had severe and escalating heart trouble, including several heart attacks, coronary artery disease, and hypertension. He was first hospitalized for recurrent chest pain in September 1992. At that time, he required an angioplasty, and was diagnosed with coronary artery disease, a recent myocardial infarction, and a history of hypertension. He was again hospitalized for chest pain in mid-October 1997. After tests showed reversible ischemia and coronary artery disease, he underwent another angioplasty with stent deployment. Bailey alleges that his disability began at this time.
Bailey also alleges a history of anxiety and depression arising from frustration with his physical limitations after the car accident and his heart problems. His medical records reflect complaints of anxiety and sleep trouble after his hospitalization in October 1997. At that time, he was also referred to a mental health specialist, although there is no evidence on the record regarding a mental health examination at this time. Bailey did not mention his anxiety in his application for benefits. However, in his initial hearing before an Administrative Law Judge (“ALJ”), his lawyer brought up the issue, and Bailey testified that he was withdrawn and had anxiety because he was physically limited at a relatively young age.
Bailey has past work experience as a carpenter. He attempted to return to this work shortly after his alleged onset date of disability, in October 1997, but only lasted two weeks due to shortness of breath. In addition, he testified that he worked as a carpenter from July to September 1999 and from October 1999 to January 2000. He made an attempt to return to work in January 2002 and from April to July 2002, but the work was too hard and demanding.
Bailey first filed an application for disability insurance benefits and supplemental security income on October 15, 1997, alleging disability as of October 10, 1997, due to “[djifficulty in breathing, chest pain when doing strenuous duties” caused by heart disease, high blood pressure, and residual effects from his neck fracture. Tr, 65. The Social Security Administration had Bailey examined; the consulting doctor asserted that Bailey had coronary artery disease with continued ischemia and anginal attacks on exertion. A psychiatric evaluation was also scheduled, but it appears that either Bailey.did not attend or the records were lost. Two residual functional capacity (“RFC”) assessments each found that Bailey had an RFC that would not preclude him from working. The Commissioner denied Bailey’s benefits application initially and on reconsideration. After a hearing, at which Bailey testified, the ALJ issued a decision on July 30,1998, finding no disability. The Appeals Council denied a request for review, and Bailey challenged this decision in the District of New Jersey.
The District Court remanded the case to the Commissioner by consent of the parties on May 7, 2002. The Appeals Council vacated the earlier ALJ decision and remanded the case to a different ALJ, with specific instructions to develop the record and address Bailey’s claims of anxiety and depression. Bailey was again hospitalized in July 2002 after experiencing crushing chest pain, and underwent cutting balloon angioplasty and intracoronary radiation therapy to treat his coronary artery disease. On November 13, 2002, Bailey underwent a mental examination; the doctor *616found that Bailey suffered from anxiety, depression, and agoraphobia based on his current inability to work and function after his recent heart attack in May 2002. Bailey also was evaluated by a psychiatrist, on February 19, 2003; Bailey asserted that he suffered from severe anxiety based on a fear of impending death, because “within a year or so he has submitted to five angio-plast[y] procedures and open heart surgery is in the forecast.” Tr. 253. On March 26, 2003, after considering the new evidence at another hearing, the new ALJ established Bailey’s onset date of disability as July 15, 2002. The ALJ found that Bailey retained an RFC1 for a full range of sedentary work until July 15, and that Bailey’s allegations of mental impairments prior to July 15 “seem exaggerated and are not supported by the medical evidence of record.” Tr. 162. The Appeals Council again denied Bailey’s request for review. On appeal, the District Court affirmed the Commissioner’s final decision as to the onset date. Bailey appeals.
II. Jurisdiction and Standard of Review
Any individual may obtain judicial review in federal district court of a final decision of the Commissioner, if the decision was made after a hearing to which the individual was a party. 42 U.S.C. § 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We apply the same standard of review as the district coui*t: we exercise plenary review over the ALJ’s application of the law, and review the ALJ’s findings of fact to determine if they are supported by “substantial evidence.” Paulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d Cir.2007). In the social security benefits context, “substantial evidence” is less than a preponderance of the evidence, but “more than a mere scintilla”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). This standard is not met if the Commissioner “ignores, or fails to resolve, a conflict created by countervailing evidence.” Kent v. Schiveiker, 710 F.2d 110, 114 (3d Cir.1983).
The statutory term “disability” indicates an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine if a person is “disabled,” an ALJ applies a five-step sequential analysis set forth in 20 C.F.R. § 404.1520. At particular issue in this case is the fifth step,2 at which the ALJ considers the RFC assessment and the claimant’s age, education, and work experience to determine if the claimant can make an adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). If at this step the ALJ determines that the claimant is not able to make an adjustment to other work, the claimant is disabled. Id. The onset date of this disability is the first day an individual is “disabled” as the term is defined in the statute and regulations. Soc. Sec. Ruling 83-20, 1983 SSR LEXIS at *2 (1983).
*617III. Whether the Onset Date Is Supported by Substantial Evidence
On appeal, Bailey first argues that the onset date of July 15, 2002 is not supported by substantial evidence because the ALJ did not consider medical evidence regarding Bailey’s alleged anxiety and depression. Bailey claims that this evidence shows that the onset date of disability was October 10,1997. We disagree.
After summarizing new evidence entered into the record, the ALJ found that Bailey’s allegations of mental impairments prior to July 15 “seem exaggerated and are not supported by the medical evidence of record.” Tr. 162. When an ALJ rejects potentially persuasive evidence, “the ALJ is not required to supply a comprehensive explanation ...; in most cases, a sentence or short paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir.1981). The ALJ’s findings must sufficiently develop the record to allow for judicial review. Id. Here, in an exhaustive review of the record, the ALJ specifically noted evidence that supported Bailey’s claims of anxiety and depression, and concluded that “the combination of his mental limitations and the limitations resulting from his coronary artery disease has precluded him from performing any work ... beginning July 15, 2002. Accordingly, for the period up to July 15, 2002, the undersigned concludes that the claimant had [an RFC].” Tr. 163. The exposition of the record and the ALJ’s analysis provide a sufficient explanation of the ALJ’s findings to allow for judicial review.
Further, while there are several instances on the record noting the presence of anxiety and depression, we agree with the District Court that the ALJ’s decision to fix the onset of disability at July 15, 2002, is supported by substantial evidence. Evidence of Bailey’s anxiety and depression appears on the record first as chart notations from visits to the Jersey Shore Medical Center, on November 24, December 22, and December 29, 1997. However, when Bailey applied for benefits on January 5, 1998, he claimed only physical disability, and did not reference any anxiety or depression. At the first administrative hearing, on May 18, 1999, Bailey’s counsel alleged the existence of “significant depression and anxiety,” and Bailey testified that he was anxious and depressed. However, despite his eighteen-month history of these problems, Bailey did not assert that the anxiety and depression in any way prevented him from seeking work. This undercuts his claim that his anxiety and depression starting in 1997 justifies an earlier onset date.
There is substantial evidence in the record suggesting that Bailey’s anxiety and depression worsened after his hospitalization on July 15, 2002. Bailey began to take medication for anxiety and depression after this hospitalization. Wdien he saw a doctor on October 30, 2002, Bailey complained of severe anxiety and agoraphobia. Bailey also complained of depression during a medical evaluation on November 27, 2002. At a psychiatric evaluation on February 19, 2003, Bailey said he was experiencing severe anxiety based on a fear of impending death, specifically due to five angioplasties “within a year or so” and likely open-heart surgery in the future. Tr. 253. Although this evidence does justify the ALJ’s finding of a July 2002 onset date, it does not support Bailey’s assertion that the February 2003 exam confirmed a longstanding mental impairment.
Bailey also cites our decision in Walton v. Halter, 243 F.3d 703 (3d Cir.2001), to support his argument that the ALJ should have required the opinion of a medical advisor to help establish the cor*618rect onset date of disability. The District Court correctly rejected this argument. As the District Court noted, further decisions of our court have confirmed that Walton’s directive to seek out the services of a medical advisor is limited to situations where the underlying disease is progressive and difficult to diagnose, where the alleged onset date is far in the past, and where medical records are sparse or conflicting. E.g., Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 549 n. 7 (3d Cir.2003).
This type of situation does not present itself here, where the claimant does not allege that the record is incomplete or conflicting. At the first ALJ hearing, counsel for Bailey did mention that a psychological examination had been scheduled, but either Bailey did not attend or the records were lost. This likely contributed to the Commissioner’s consent to remand the case for further development of the record with regard to Bailey’s alleged anxiety and depression. Based on this directive, Bailey underwent a psychiatric evaluation on February 19, 2003, and this evaluation was included in the record. The ALJ did not rely on a lack of medical records showing treatment for mental illness as support for the absence of disability. Therefore, based on the medical evidence in the record, there is substantial evidence supporting the decision of the ALJ to fix the onset date of disability on July 15, 2002, and to deny benefits before that date.
IV. Whether the ALJ Improperly Disregarded Bailey’s Symptoms
Bailey next argues that the ALJ did not properly consider his asserted symptoms and non-exertional limitations in determining the existence of an RFC prior to July 15, 2002, and gave insufficient weight to Bailey’s characterization of the severity of his anxiety and depression during this time.
When making credibility findings, the ALJ must indicate which evidence he rejects and which he relies upon as the basis for the findings. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir.1999). Allegations of subjective symptoms must be supported by objective medical evidence. 20 C.F.R. § 404.1529(b). Social Security Ruling (“SSR”) 96-7p also makes clear that an individual’s statements about symptoms are not enough to determine disability, but must be corroborated by medical evidence. Soc. Sec. Ruling 96-7p, 1996 SSR LEXIS 4 at *4-5 (1996).
Despite Bailey’s arguments to the contrary, the ALJ followed the procedures of SSR 96-7p in considering Bailey’s subjective symptoms. Here, the ALJ provided an exhaustive exposition of the medical evidence in the record, including diagnoses of anxiety and depression in 1997 and 1998 from the Jersey Shore Medical Center charts and Bailey’s prior testimony. However, the ALJ rejected Bailey’s statements as to his symptoms for the period before July 15, 2002, because they were “not supported by the medical evidence of record.” The ALJ then examined Bailey’s medical records from the period before July 15, 2002, specifying which parts of the record were relied on in making this determination. In particular, the ALJ noted medical evidence demonstrating severe anxiety and depression after Bailey’s July 2002 hospitalization. Because the ALJ specifically rejected Bailey’s subjective symptoms for the period before July 15, 2002, and based these findings on specific medical evidence in the record, the ALJ properly discounted Bailey’s testimony.
*619V. Whether the ALJ Improperly Relied on Medical-Vocational Guidelines
Finally, Bailey argues that the ALJ improperly relied on the Medical-Vocational Guidelines in determining the onset date of disability. In particular, Bailey argues that his alleged non-exertional limitations (depression and anxiety) precluded sole reliance on the Guidelines, and that the Commissioner should have offered further evidence and testimony from a vocational expert to carry the burden under step five. The District Court correctly rejected Bailey’s arguments.
We have held that ALJs may rely on the Guidelines without hearing testimony from a vocational expert, as long as the claimant does not have both exertional and non-exertional limitations. E.g., Sykes v. Apfel, 228 F.3d 259, 267 (3d Cir.2000). In this case, the ALJ found that no non-exertional limitations existed prior to July 15, 2002. As described above, this conclusion is supported by substantial evidence in the record. Therefore, because the ALJ concluded that no non-exertional limitations existed prior to July 15, 2002, it was appropriate to rely on the Guidelines without seeking testimony from a vocational expert.
VI. Conclusion
For the reasons set forth above, we will AFFIRM the Order of the District Court.
. An RFC describes the extent of activities an individual can do in a work setting despite some physical and mental limitations. 20 C.F.R. § 404.1545(a)(1).
. The ALJ did not decide whether Bailey’s employment from July to September 1999 and from October 1999 to January 2000 constituted substantial gainful activity for step one of the analysis, because he concluded at step five that Bailey retained enough of an RFC to not be disabled prior to July 2002. 20 C.F.R. § 404.1520(a)(4)(i); see also 20 C.F.R. § 404.1572 (defining substantial gainful activity).
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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/8475192/
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OPINION
WEIS, Circuit Judge.
Joanna Masher appeals the District Court’s order affirming the denial of her Social Security disability benefits claim. We conclude that there is insufficient evidence supporting the denial of benefits. The ALJ failed to give proper weight to the treating physician’s opinion, disregarded objective medical evidence, and improperly substituted her own judgment for that of the experts. Accordingly, we will remand for further proceedings.
I.
Masher, age 33, is a high school graduate. From 2000 to 2004, she worked as a “jam runner,” or conveyor operator, which involved repeated scanning and pushing of stock weighing up to 100 pounds onto a conveyor system.1 In 2003, she was diagnosed with bilateral carpal tunnel syndrome.2 She had surgery on her right hand that June and was out of work for several months.
Soon after Masher returned to work, she began experiencing the same pain that had led to her carpal tunnel surgery. In November 2003, it was clear that the surgery had not solved her problem, and her physician, Dr. Vincent DiGiovanni, ordered EMG and nerve conduction tests. The results showed neuropathy in the nerves affecting both wrists, right elbow and right brachial plexus.
Masher requested and was given a different job with the same company, performing light office tasks which, though repetitive, required less lifting. However, her condition continued to deteriorate. In March 2004, Dr. DiGiovanni concluded that Masher had both thoracic outlet syndrome3 and bilateral carpal tunnel syn*625drome. He referred her to Dr. Allen To-gut, a thoracic specialist.
Dr. Togut saw Masher in April 2004. After performing a comprehensive physical and neurological examination, he confirmed the diagnoses of bilateral carpal tunnel and thoracic outlet syndromes. At the end of this three-hour exam and consultation, Dr. Togut told Masher that “she was totally disabled for any gainful employment.”
Masher ceased her employment in April 2004, but, contrary to Dr. Togut’s recommendation, returned two months later on a part-time basis, reducing her workday from eight hours to six and finally to four. However, despite the change in working conditions, she continued to experience pain and loss of sensation in her hands.
Finally, on August 25, 2004, Masher quit work altogether. She applied for disability benefits on August 18, 2005, contending that her disability began the previous August.
At a hearing before an ALJ in March 2007, Masher testified at length. She described her pain as similar to “a toothache,” and often accompanied by “numbness and tingling” in her right hand, which frequently caused her to drop what she was holding. She also reported headaches and backaches on the right side, twinges of pain under her right arm, stiffness in her right wrist, elbow and shoulder, and tightness on the right side of her neck. Finally, she noted a “pull sensation” in her right arm and shoulder that would occur when she reached overhead. These symptoms were exacerbated by cold and anxiety.
Masher testified that she took medications for pain, depression, and anxiety, and that the pain pills were effective so long as she limited her daily activities. However, the medications made her “really tired” and sometimes affected her ability to “think straight.” In addition, she reported waking up because of pain several nights per week. For these reasons, she usually napped at least once and sometimes twice each day.
With respect to daily activities, Masher testified that she could sit and stand for about 20 minutes, but could write for only 20 seconds at a time. She was able to attend to her basic personal grooming, but often cut corners where her hair and makeup were concerned. Her wardrobe, too, had been affected by her medical condition; for example, she frequently wore sweatshirts with a front pocket to give support to her right hand and wrist when she moved. She did some housekeeping but needed to work in short bursts to avoid nighttime pain, which led to sleeplessness and exhaustion. In addition, she had delegated a number of tasks to her husband and children that she was no longer able to complete. She could not drive long distances because her hands would fall asleep. In sum, Masher testified that, by significantly circumscribing her daily activities, she could limit her discomfort to manageable levels.
In addition to her testimony, Masher presented six reports and notes of almost a dozen office visits prepared by Dr. Togut, who treated her between April 2004 and February 2007.
The first report, dated April 29, 2004, described his initial evaluation of Masher, during which he examined the range of motion in her neck; the effects of certain movements on her neck, shoulders and arms; the effects of applied pressure to key nerve points on her neck, shoulders and arms; her ability to sense vibrations *626on both hands and arms; her deep tendon reflexes; and muscle strength in both shoulders and arms. His findings supported the diagnoses of bilateral carpal tunnel and thoracic outlet syndromes. This report also included Dr. Togut’s conclusion that Masher was “totally disabled for any gainful employment.”
Dr. Togut’s later reports and notes tracked Masher’s condition and reiterated his opinion that she should not return to work, because the strain of working — even in a part-time, sedentary capacity — would aggravate her medical problems. These reports demonstrate that this opinion was based on Masher’s subjective complaints, which Dr. Togut repeatedly confirmed through the use of objective medical tests, as well as the difficulties she had in 2004 doing light work at reduced hours.
Moreover, Dr. Togut’s February 2005 report indicated that, although Masher had been out of work for nearly six months, her condition was not only worsening on the right side of her body but also spreading to the left. Although she had reported occasional numbness and tingling in the left hand as early as April 2004, by February 2005, the pain in that hand was increasing. Masher also reported, for the first time, dropping objects held in her left hand, pain in the left elbow, and numbness of the left fingers. These complaints were consistent with the results of Dr. Togut’s objective tests. For example, range of motion in Masher’s neck was reduced compared to April 2004, and the “nerve tension test” performed on the left brachial plexus likewise suggested “a problem on the left.”
The ALJ also reviewed the May 2004 report of Dr. Steven Mandel, a neurologist who performed a one-time Independent Medical Evaluation of Masher in connection with a dispute related to her worker’s compensation benefits. Dr. Mandel agreed with the diagnoses of bilateral carpal tunnel syndrome and right thoracic outlet syndrome, but believed that Masher could nevertheless return to modified duty.
Dr. Mandel completed a “Work Capabilities form” and reported that Masher could sit, stand or walk continuously for eight hours; could not perform any fine manipulation with either hand; could perform “[sjimple [gjrasping” with both hands but could not push or pull more than five pounds with either; and could occasionally reach above shoulder height. Some of Dr. Mandel’s recommendations appear to be inconsistent. For example, he wrote that although Masher could “never” lift 20 pounds or more, she could “frequently” carry 20, 50, or 100 pounds.
Also before the ALJ was an assessment form from a non-examining consulting physician, dated September 20, 2005. It is unclear what medical evidence, if any, the non-examining physician reviewed. However, he concluded that Masher was capable of sedentary work and recommended comparatively few workplace or exertional limitations. For example, he opined that Masher was capable of “occasionally” lifting 20 pounds, had no problems with gross or fine manipulation or sensation in her fingers and hands, and was “unlimited” in her ability to push and pull, findings that were inconsistent with Dr. Mandel’s and Dr. Togut’s. The non-examining physician did not complete the portions of the evaluation form requesting evidentiary support for his conclusions.
Finally, the ALJ heard from a vocational expert, who testified that a person of Masher’s age, education, experience, and physical limitations as characterized by the ALJ4 might be able to perform “basic *627hand packer positions.” She stated that there were hundreds of these jobs in the region.
The ALJ denied Masher’s claim. Although Dr. Togut was the only physician on record to examine Masher after the alleged onset of her disability, the ALJ declined to give the doctor’s opinion any significant weight, citing three reasons for this decision. First, she deemed Dr. To-gut’s view as to Masher’s disability “merely a eonelusory finding apparently based on the claimant’s subjective complaints.” Second, “an opinion on the ultimate issue of disability is reserved for the Commissioner.” Finally, she stated that “Dr. To-gut’s opinion is not supported by objective medical evidence of record” since Dr. Mandel made “essentially” the same diagnosis but did not find Masher to be totally disabled.
The ALJ rejected the diagnosis of both Dr. Togut and Dr. Mandel that the carpal tunnel syndrome was bilateral. In fact, she found that “there [wa]s no objective evidence ... that showfed] any gait, range-of-motion, sensory, motor or neurological deficit” on the left side. Therefore, she “acceptfed] Dr. Mandel’s opinion as modified ... limitfing] the restrictions to the right side only which is in conformity with medical records.” Based on these determinations, the ALJ concluded that Masher could perform sedentary unskilled work with restrictions.
On appeal, the District Court declined to overturn the Commissioner’s ruling. Masher sought review here.
II.
The District Court had jurisdiction to review the final decision denying disability benefits based upon 42 U.S.C. § 405(g). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. Our role, like that of the District Court, is to determine whether substantial evidence supports the Commissioner’s decision. Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir.2008).
III.
Masher contends that substantial evidence does not support the denial of benefits, because the ALJ: 1) failed to attribute proper weight to the opinion of her treating physician, Dr. Togut; 2) mischaracterized Dr. Togut’s opinion as eonelusory and unsupported by objective medical evidence; and 3) gave more weight to the opinion of Dr. Mandel, who examined Masher one time, three months before the alleged onset of her claimed disability.
“An ALJ should give treating physicians’ reports great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.” Brownawell, 554 F.3d at 355 (citation and internal quotation marks omitted). The ALJ is not permitted to “make speculative inferences from medical reportsf,]” nor can she “employ her own expertise against that of a physician who presents competent [expert] evidence.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999). “[C]ontradietory medical evidence is required for an ALJ to reject a treating physician’s opinion outright.” Brownawell, 554 F.3d at 355.
Where the evidence conflicts, “the ALJ may choose whom to credit[,] but [she] ‘cannot reject evidence for no reason or for the wrong reason.’ ” Plummer, 186 F.3d at 429 (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)). To the contrary, she “must consider all the evidence and give some reason for discounting [that which] she rejects.” Id.
Here, it appears that the ALJ’s refusal to give significant weight to the reports of Dr. Togut was influenced to some degree by his repeated use of the word “disabled.” *628It is certainly true, as the ALJ stated, that “an opinion on the ultimate issue of disability is reserved for the Commissioner.” But, the ALJ’s apparent disapproval of the doctor’s use of the term to describe Masher’s condition from a medical standpoint overlooks the differing contexts in which the word can be used.
The mere utterance of the word “disabled” does not make a physician’s opinion “conclusory.” See Bromiawell, 554 F.3d at 355-56 (ALJ failed to give appropriate weight to opinion of treating physician, who repeatedly opined that claimant was “disabled”). Rather than focusing on the doctor’s choice of words, the ALJ was obligated to examine the substantive evidence on which the physician’s conclusion was based.
Dr. Togut was, significantly, the only physician to examine Masher after August 2004, the alleged onset of her claimed disability. He repeatedly performed a number of objective medical tests, the results of which were memorialized at length in his reports of April 2004 and February 2005. The result of these tests demonstrated that Masher was increasingly symptomatic on the left side and getting worse, not better, on the right. Furthermore, based on his ongoing treatment, Dr. Togut was aware that Masher had tried, without success, to return to work, even after he recommended that she quit. He also was familiar with the effects on Masher of daily household tasks and increased stress and physical activity.
Access to this type of information is often exclusive to the treating physician. For that reason, we have consistently held that the ALJ must give “controlling weight” to the opinion of a treating physician unless that opinion is not supported by “medically acceptable clinical and laboratory diagnostic techniques [or] is ... inconsistent with the other substantial evidence in ... [the] record.” Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.2001) (quoting 20 C.F.R. § 404.1527(d)(2)). Here, Dr. Togut conducted numerous tests; indeed he performed the same objective tests as Dr. Mandel, whose opinion was adopted by the ALJ. On this record, we are not persuaded that the ALJ gave sufficient deference to the opinion of Dr. Togut. See Plummer, 186 F.3d at 429 (ALJ “cannot reject evidence for no reason or for the wrong reason” (quoting Mason, 994 F.2d at 1066)). Accordingly, remand is required.
In light of this holding, we need not address the question whether sufficient evidence supports the ALJ’s specific findings as to the type of employment available to Masher. However, on remand, the ALJ should evaluate all the evidence and explain the basis for her conclusions. See Fargnoli, 247 F.3d at 42-44.
Here, in concluding that Masher was capable of reentering the work force, albeit with numerous restrictions, the ALJ appeared to disregard several inconsistencies in the findings of Dr. Mandel and the non-examining physician. She also rejected the unanimous medical determination that the carpal tunnel syndrome was bilateral, concluding instead that Masher had no issues with her left hand or arm.5 This conclusion, in turn, was one of the “assumptions” on which the vocational expert based her opinion that Masher could return to gainful employment.
We will reverse the District Court’s grant of summary judgment and remand *629for proceedings consistent with this opinion.
. Masher also has worked as a playground attendant and a department store cashier and Stocker.
. Carpal tunnel syndrome is
'fa] condition resulting from pressure on the median nerve as it traverses the carpal lunnel[, a space deep within the palmar surface of the wrist], usually by fibers of the transverse carpal ligament. The condition is characterized by pain, tingling, burning, numbness, etc. in the areas supplied by the nerve, i.e., in the skin of the palm, fingers, wrist, etc. There may also be swelling of the fingers and atrophy of some of the muscles of the hand, especially those at the base of the thumb.”
1 J. E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder C-95 (December 2008).
.Thoracic outlet syndrome, or Naffziger's syndrome, is "l’a]n abnormal condition marked by pain in the shoulder, pain extending down the arm, and, sometimes, pain in the back of the neck. There may also be spasms of blood vessels.” 4 J.E. Schmidt, Attorneys’ Dictionary of Medicine and Word Finder N-4 to N-5 (December 2008). These *625symptoms are "caused by pressure on the nerves of the brachial plexusf, a large network of nerves located in the neck that supplies the nerves to the arm muscles,! and the subclavian artery by an excessively tense muscle of the neck.” Id.
. Contrary to the diagnosis of both Dr. Togut and Dr. Mandel, the ALJ disregarded Masher’s left-hand carpal tunnel issues and instructed the vocational expert to assume “[n]o limitation of handling or fingering” with respect to the left hand.
. We note that, in so doing, the ALJ cited Dr. DiGiovanni's notes and reports from 2003, some two years before Masher applied for disability benefits and well before she claimed that her alleged disability manifested.
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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/8475194/
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OPINION
AMBRO, Circuit Judge.
Victor Berrios appeals the sentence imposed on him by the District Court after he pled guilty to two counts of possession of a firearm while convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Berrios claims that the Court erred in (1) sentencing him pursuant to the enhancements mandated by the Armed *630Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and (2) relying on certified copies of charging documents to determine the nature of his prior convictions for purposes of the ACCA’s enhancements for those with three or more prior convictions for serious drug offenses and/or violent felonies. We affirm the Court’s use of certified copies of charging documents and the resulting enhanced sentence.
I.
Berrios’ felon-in-possession counts stem from separate incidents, one on September 13, 2006, and the other on January 18, 2007. We briefly discuss the facts of each incident as well as the disposition in the District Court.
A.
On September 13, 2006, two Philadelphia police officers stopped Berrios after observing his vehicle swerve and nearly strike several cars parked on North Front Street in Philadelphia. Berrios was found to be in possession of a black handgun with wood grips, later determined to be a loaded .38-caliber revolver. A search of the vehicle resulted in the discovery of another weapon, a loaded .40-caliber semiautomatic pistol. The result was Berrios’s arrest.
B.
On January 18, 2007, FBI agents and Philadelphia police prepared to execute an arrest warrant at Berrios’s house on the 500 block of East Godfrey Avenue in Philadelphia. The warrant was related to the September 13, 2006, incident. After Berr-ios was arrested, FBI agents asked him for consent to search his home. He agreed and signed a consent form. Berr-ios was asked whether he had anything dangerous in the house that could injure the officers as they searched, and he directed agents to the location of two handguns hidden in a cabinet above a bathroom door on the first floor. Officers recovered a loaded .38-caliber revolver, an unloaded .40-caliber semi-automatic handgun, and a magazine loaded with seven rounds of .40-caliber ammunition.
C.
An indictment was filed charging Berr-ios with the single count of possession of a firearm while convicted of a felony. This indictment referred to the September 13, 2006, incident. A two-count superseding indictment subsequently was filed to account for the two additional weapons recovered during the January 18, 2007, arrest.
Berrios entered a conditional plea of guilty to the superseding indictment whereby he preserved the right to challenge the Government’s contention that he qualified under the ACCA. After accepting his guilty plea, the Court sentenced Berrios to 188 months’ incarceration. The sentence, which ordinarily has a 10-year maximum, was enhanced to a 15-year mandatory minimum and a Guideline range of 188-235 months under the ACCA’s terms. The Government produced certified copies of Berrios’s five pri- or convictions and charging documents for felony'drug offenses. See J.A. 8-11, 12-15, 16-19, 20-23 & 24-27. Each certified set of documents included the criminal complaint, the bill of information, and the record of conviction and sentence signed by the court. He now appeals the constitutionality of the enhanced sentence and the use of the charging documents in sentencing.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. To the extent Berrios contends that his sentence was imposed in violation of law, we have *631jurisdiction under 18 U.S.C. § 3742. Because he raises purely legal issues of statutory and constitutional interpretation, our review is plenary. See, e.g., United States v. Singletary, 268 F.3d 196, 199 (3d Cir.2001).
III.
Berrios’s first claim is similar to one we discussed at length in United States v. Coleman, 451 F.3d 154 (3d Cir.2006). For similar reasons, we reject that claim. His second claim is directly addressed by Supreme Court precedent in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Accordingly, we reject that claim as well.
A.
The ACCA mandates a minimum sentence of 15 years’ imprisonment if a person who violates 18 U.S.C. § 922(g) has three previous convictions for a serious drug offense. 18 U.S.C. § 924(e). The definition of “serious drug offense” relevant to this case is defined as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(h).
The District Court did not err when it applied the ACCA to sentence Berrios. He argues that the prior convictions underlying the enhanced sentence were not admitted at his guilty plea hearing nor proved to a jury beyond a reasonable doubt, violating the Sixth Amendment. This contention is incorrect. The holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the continuing existence as precedent we recognized in Coleman, held that prior convictions that increase the statutory maximum for an offense are not elements of the offense and thus may be determined by the District Court by a preponderance of the evidence. Coleman, 451 F.3d at 159.
While Berrios contends that the Supreme Court’s holding in Almendarez-Torres has “become largely irrelevant given [the] more recent body of [F]ifth and [S]ixth amendment jurisprudence” (Appellant’s Br. 9), specifically referring to the decision in Shepard, we have previously held the contrary. In Coleman, we examined in detail the effect of the then-recent Supreme Court decision of Shepard and concluded that “Shepard did not affect the continuing vitality of Almendarez-Torres.” Coleman, 451 F.3d at 161.
In this case, the District Court found the requirements of the ACCA to be met by Berrios’s five prior “serious drug offenses,” discussed in more detail below, and the Court sentenced him in accord with the enhanced statutory minimum of 15 years’ incarceration.
B.
The District Court did not err when it relied on certified copies of charging documents to determine the nature of Berrios’s prior convictions because those documents comport with the reliability requirements of Shepard. The documents offered by the Government to the District Court consisted of five certified copies of the records of conviction for Berrios’s pri- or convictions. Each copy consists of: (1) a certification that it is a true and correct copy of the record as full, entire, and complete as the copy in the clerk’s office; (2) the record of conviction and sentence signed by the convicting court; (3) the Bill of Information from the Office of the District Attorney, filed in Court, charging Berrios with the drug offenses; and (4) the criminal complaint, filed in Court, in which Berrios is accused of committing the drug offenses in a sworn statement.
*632These documents are the types of documents that Shepard explicitly allowed to be considered under the ACCA. While Shepard did not allow the use of documents that predated charges, such as police reports submitted to a local court as grounds for issuing a complaint, it did allow the use of “conclusive records made or used in adjudicating guilt.” Shepard, 544 U.S. at 21, 125 S.Ct. 1254. District Courts may inquire as to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id. at 26, 125 S.Ct. 1254.
In this case, Berrios objects to the Distinct Court’s use of the Bills of Information that were filed in local court to charge him with the predicate drug offenses to enhance his sentence under the ACCA. He asserts that these documents fall short of the Shepard standard of “some comparable judicial record.” Id. However, it is clear from the face of the Bills of Information that these are the sort of “charging document[s]” that Shepard allows District Courts to consult for sentencing under the ACCA. The Bills charge Berrios with various drug offenses, specifically identifying both the conduct and the drug. Berrios’s criminal history as outlined in these charging documents includes convictions for the knowing and intentional possession with intent to deliver: (1) cocaine in May 1989; (2) cocaine in November 1989; (3) heroin in February 1990; (4) cocaine in November 1992; (5) and heroin in April 1993. See J.A. 10, 14, 18, 26 & 22. These Bills were filed in the Common Pleas Court of the County of Philadelphia, and they are “charging documents” within the scope of Shepard.
Accordingly, Berrios’s contention that the Bills of Information are insufficient and unconstitutional bases for the District Court’s enhancement under the ACCA, because they do not meet the reliability requirements of Shepard, is not correct.
í[: íj; :¡í $ ;¡: íjf
We hold that the District Court’s sentence enhancements pursuant to the ACCA were constitutional under our precedents. Furthermore, its use of charging documents was constitutional and comported with the protections enunciated in Shepard. We thus affirm the judgment of the District Court.
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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/8475196/
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Douglas Kennedy appeals following the District Court’s grant of his motion for a new trial on four counts of conviction. Kennedy argues that he was entitled to a new trial on all eight counts of conviction, and that joinder of two of the counts in the indictment was improper. The government cross-appeals contending that it was error to grant a new trial on any count.
On November 9, 2004, after conducting surveillance and speaking with a cooperating witness, Drug Enforcement Agency agents arrested Kennedy as he returned to his home in his Lincoln Navigator. Kennedy consented to a search of his residence, the Navigator, and a Cadillac, orally and in writing. Agents searched his residence and found ammunition, firearms, cash, a phone that had been used to communicate with the cooperating witness, and approximately 9 grams of crack cocaine, which Kennedy allegedly admitted was his. Nothing illegal was found in the Cadillac, but a gun and heroin were found in the Navigator. Over a year later, on November 23, 2005, an employee of a private contractor operating a storage facility used by the United States Marshal’s Service, found 103.9 grams of heroin and a handgun in a secret compartment in the Cadillac while doing routine maintenance on the car. Previously, the government had searched the Cadillac using drug sniffing dogs and the same employee had conducted routine maintenance on the car numerous times, without finding any contraband.
On May 23, 2006, a Second Superseding Indictment was returned against Kennedy alleging the following counts:
Count I: Conspiracy to distribute and possess with intent to distribute a controlled substance, 21 U.S.C. § 846 (in part for drugs found in Cadillac) -
Count II: Possession with intent to distribute heroin, 21 U.S.C. § 841 and 18 U.S.C. § 2 (drugs found in Navigator)
Count III: Possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (gun in Navigator)
Count IV: Possession with intent to distribute heroin, 21 U.S.C. § 841 and 18 U.S.C. § 2 (drugs in Cadillac)
Count V: Possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) (gun in Cadillac)
Count VI: Possession with intent to distribute cocaine base, 21 U.S.C. § 841 and 18 U.S.C. § 2 (crack found at Residence)
Count VII: Possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (gun in Navigator)
*635Count VIII: Possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (gun in Cadillac)
On July 28, 2006, Kennedy was found guilty on all eight counts following a four-day jury trial. Numerous law enforcement officers testified about the surveillance, the search of the house and cars, Kennedy’s statements to law enforcement, and the contraband found in the Navigator and the Cadillac. Defense counsel attacked the government’s initial failure to find the contraband in the Cadillac and the year-long passage of time before it was found in his opening statement, his summation, and during his cross-examination of witnesses.
On October 24, 2006, Kennedy filed a pro se motion for new counsel, which the District Court granted on November 2, 2006. On November 15, 2007, Kennedy’s new counsel filed a motion for a new trial, arguing that the untimeliness of that motion was due to excusable neglect. The motion for a new trial contended that: 1) trial counsel was ineffective for failing to challenge the admissibility of the evidence found as a result of the search of the Cadillac; 2) two counts of the Second Superseding Indictment were improperly joined; and 8) the government improperly charged only one conspiracy despite offering proof of numerous conspiracies. The government opposed the motion based on its untimeliness and its substance.
On August 21, 2008, the District Court held oral argument on Kennedy’s motion for a new trial and a sentencing hearing. The District Court considered the merits of the motion for a new trial after finding that there was excusable neglect due to miscommunication, or no communication, between Kennedy and his trial counsel after the trial. The District Court dismissed Kennedy’s improper joinder argument because the joined counts were similar drug trafficking charges and dismissed Kennedy’s argument regarding the conspiracy charge because the government “alleged and charged only one conspiracy.” Kennedy Appendix (“KA”) 65. The District Court then decided that Kennedy’s trial counsel was ineffective for failing to challenge the admissibility of the evidence obtained from the search of the Cadillac a year after Kennedy’s arrest and that this clearly prejudiced Kennedy.
The District Court granted Kennedy a new trial on counts I, IV, V, and VIII of the Second Superseding Indictment and sentenced Kennedy on the remaining four counts (II, III, VI and VII) to 180 months’ imprisonment. Following these rulings, Kennedy filed a notice of appeal and the government filed a notice of cross-appeal.
I. New Trial as to Four Counts
Kennedy argues that his trial counsel’s ineffective assistance poisoned his entire trial and therefore, the District Court erred in granting a new trial as to only four counts. The District Court’s decision to grant Kennedy a new trial on four counts under Federal Rule of Criminal Procedure 33 is reviewed for abuse of discretion; a District Court abuses its discretion by definition when it makes an error of law. United States v. Kelly, 539 F.3d 172, 181 (3d Cir.2008).
The District Court found that Kennedy’s trial counsel was ineffective in failing to challenge the admissibility of the evidence found in the Cadillac, and granted his motion for a new trial on the four counts arising out of that evidence. Kennedy argues that his trial counsel’s ineffectiveness infected his entire trial with constitutional errors so that a new trial was warranted as to all eight counts of conviction. Kennedy does not demonstrate how these errors affected the other four counts, nor does he present any case law to substanti*636ate his claim.1 Therefore, we cannot conclude that the District Court abused its discretion in granting Kennedy a new trial on only four out of eight counts.
The government contends that the District Court erred in granting Kennedy’s motion for a new trial by 1) allowing Kennedy’s tardy motion for a new trial based on excusable neglect, 2) ruling on a ground that was never raised by Kennedy in his motion for a new trial, 3) granting a new trial on four counts based on trial counsel’s decision not to bring a meritless motion, and 4) never explicitly finding that Kennedy suffered prejudice and assuming that Kennedy suffered prejudice based on his potential sentence.
A. Excusable Neglect
Under Federal Rule of Criminal Procedure 45(b)(1)(B), a court may extend the time prescribed under Federal Rule of Criminal Procedure 33(b)(2) due to excusable neglect. Excusable neglect is an equitable determination that should take account of relevant circumstances, including danger of prejudice, the length of the delay, the delay’s impact on judicial proceedings, the reason for the delay, whether the movant had control over the delay, and whether the movant acted in good faith. In re Cendant Corp. PRIDES Litig., 234 F.3d 166, 171 (3d Cir.2000) (citing Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).2 The Government concedes that it did not challenge the District Court’s authority to extend the time period for Kennedy to file a motion for a new trial, although it did oppose that motion as untimely because it was filed almost sixteen months after Kennedy’s conviction.3 The District Court did not abuse its discretion in allowing the motion due to excusable neglect after finding that there was little or no communication between Kennedy and his trial attorney after the trial and *637Kennedy’s trial attorney had “abandoned him after the trial.” KA. 46, 54, 64.
B. Ruling on Grounds not Raised by Kennedy in his Motion for a New Trial
A trial judge may not grant a new trial on grounds not raised by the defendant. United States v. Wright, 363 F.3d 237, 248 (3d Cir.2004). In his motion for a new trial Kennedy’s sentencing counsel argued that trial counsel was ineffective in not filing any pre-trial motions or adequately challenging the evidence found in the Cadillac a year after that ear was seized by the government. The government faults sentencing counsel for not specifically describing the issue as one involving “ehain of custody.” However, the District Court did not clearly err in considering the issue notwithstanding counsel’s failure to characterize it as an argument regarding the “chain of custody,” because Kennedy’s argument was substantially similar.4
C. Ineffective Assistance of Counsel
We note at the outset that rarely, if ever, should an ineffectiveness of counsel claim be decided in a motion for a new trial or on direct appeal. “[T]his Court has expressed a preference that ineffective assistance of trial counsel claims be brought as collateral challenges under 28 U.S.C. § 2255, rather than as motions for new trials or on direct appeal.” United States v. Chorin, 322 F.3d 274, 282 n. 4 (3d Cir.2003) (citing United States v. DeRewal, 10 F.3d 100, 104-5 (3d Cir.1993) (stating that a Rule 33 motion is not the preferred vehicle for asserting ineffectiveness of counsel claims)); see also United States v. Ugalde, 861 F.2d 802, 809 (5th Cir.1988) (“Defendants prejudiced by ineffective assistance of counsel have a ready remedy. They may mount a collateral challenge by a federal habeas petition as allowed by 28 U.S.C. § 2255. That mechanism, rather than a new trial, seems best to accommodate the interests in finality and fairness with respect to ineffective assistance of counsel claims.”). Habeas proceedings offer the opportunity for the development of a factual record. No such record was developed here in connection with the motion for a new trial. We do not endorse the procedure followed by the District Court, but will proceed to examine what did occur here in connection with the motion for a new trial.
Under Stnekland v. Washington, to grant a new trial based on ineffective assistance of counsel, the District Court must find that (1) counsel’s performance was deficient and (2) that the defendant was prejudiced by this performance. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The District Court’s ruling on ineffective assistance of counsel is reviewed de novo. United States v. Cross, 308 F.3d 308, 314 (3d Cir.2002).
i. Deficient Performance
To determine whether Kennedy’s trial counsel’s performance was deficient, the District Court should have started with a weak presumption that trial counsel’s decision was strategic, which Kennedy could rebut by showing that the conduct was not part of a strategy or that the strategy was unsound. Thomas v. Varner, 428 F.3d 491, 499 (3d Cir.2005). The District Court did not start with this presumption of strategy and instead of placing the burden on Kennedy to rebut the pre*638sumption of strategy it placed the burden on the government to demonstrate that Kennedy’s trial counsel had a strategy. The District Court also denied the government’s request for an adjournment so that Kennedy’s trial counsel could testify as to his strategy. The District Court told the government that if there were relevant facts that the Court should be aware of, the government should have brought them to the Court in the proper form. KA. 51.
However, we have stated:
In cases in which the record does not explicitly disclose trial counsel’s actual strategy or lack thereof (either due to lack of diligence on the part of the petitioner or due to the unavailability of counsel), the presumption may only be rebutted through a showing that no sound strategy posited by the Commonwealth could have supported the conduct.
Thomas, 428 F.3d at 499.
The record in this case does not disclose trial counsel’s actual strategy or lack thereof, and the burden was on Kennedy to show that trial counsel’s actions could never be part of a sound strategy. The Government posits that Kennedy’s trial counsel may well have made a decision not to move to exclude this evidence as such a motion would have been meritless, and it would be more effective to attack the weight of this evidence on cross-examination.5 Kennedy did not show that trial counsel’s decision was not part of a strategy nor that there was no possible sound strategy offered by the government. Nonetheless, the District Court made its own conclusory determination that Kennedy’s trial counsel’s decision not to make a chain of custody argument “seems not to have been his strategic choice” and that there was “no apparent reason not to make this appealing argument.” KA. 67-8.
We do not find support for this conclusion in the record. Counsel’s decision not to challenge the evidence in the Cadillac based on a chain of custody argument is not a deficient performance as a matter of law. Therefore, the District Court erred in relieving Kennedy of his burden to prove ineffectiveness by rebutting the presumption of strategy. As the record stands, Kennedy failed to prove that counsel’s performance was deficient.
ii. Prejudice
To show prejudice, there must have been a reasonable probability that, but for Kennedy’s trial counsel’s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Kennedy had to show that he would have likely prevailed on the motion to exclude the evidence found in the Cadillac and that, having prevailed, there is a reasonable probability that he would not have been convicted. Thomas, 428 F.3d at 502. The District Court ruled that the government’s chain of custody over the Cadillac was “at least somewhat suspicious” (KA.66) but never actually concluded that Kennedy would have succeeded in a motion to exclude the evidence based on chain of custody.6 Instead, the District Court *639merely found that had Kennedy’s counsel been successful in this argument, the jury could not have convicted Kennedy of the crimes based on possession of the evidence found in the Cadillac. The District Court erred in failing to thoroughly reason through the prejudice prong of the ineffective assistance of counsel analysis and in determining that Kennedy was prejudiced. Accordingly, we conclude that the motion for a new trial should not have been granted.
II. Joinder
The District Court held that all of the offenses charged against Kennedy were drug trafficking offenses and thus were properly joined. Kennedy argues that counts II (possession of heroin with intent to deliver) and III (possession of a gun in furtherance of a drug trafficking crime), which both dealt with evidence found in the Navigator, were improperly joined because they were unrelated to the conspiracy charged. We make an independent determination as to whether or not joinder of counts under Rule 8 was proper; if joinder was improper, we must undertake a harmless error analysis. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir.2003). Federal Rule of Criminal Procedure 8 states that “[t]he indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged — whether felonies or misdemeanors or both — are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”
Kennedy cites no case law to support his position. Kennedy states that the evidence of contraband found in the Navigator was capable of improperly influencing and confusing the jury on the conspiracy charges and further prejudiced Kennedy by enhancing his potential sentence. The government responds that all counts were properly joined because they were based on similar conduct and implicated the same criminal statutes. Furthermore, the government contends that Kennedy cannot show any prejudice from the joinder.
Joinder is proper if the offenses charged are of a similar character. Counts II and III are identical charges to counts IV and V, except that they involve controlled substances found in different locations. We find that counts II and III were properly joined.
For the reasons set forth above we will AFFIRM the District Court’s ruling on joinder of counts II and III, REVERSE the District Court’s grant of a new trial on counts I, IV, V, and VIII, and REMAND for re-sentencing only.
. Kennedy does not use the term “prejudicial spillover.” “The concept of prejudicial spillover ... requires an assessment of the likelihood that the jury, in considering one particular count or defendant, was affected by evidence that was relevant only to a different count or defendant.” United Slates v. Hamilton, 334 F.3d 170, 181 (2d Cir.2003). Kennedy, however, does not demonstrate how the jury was prejudiced as to the remaining counts by the admission of the evidence found in the Cadillac, especially since the remaining counts also involved evidence of drugs and guns. See Hamilton, 334 F.3d at 182 ("fPlrejudicial spillover is unlikely if the dismissed count and the remaining counts were either quite similar or quite dissimilar.").
. The Cendant Corp court and Pioneer Court dealt with excusable neglect in terms of Federal Rule of Civil Procedure 60(b), but the factors for a court to consider are relevant to this case.
. The Government suggests in a footnote that, under the Supreme Court's ruling in Eberhart v. United States, 546 U.S. 12, 13, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005), the District Court lacked authority to consider Kennedy’s motion based on excusable neglect. The Court in Eberhart found that the rules setting time limits were not jurisdictional, but were inflexible claim-processing rules. Id. The Court also found that the time limit in Federal Rule of Criminal Procedure 33 is “rigid” and may not be extended except as stated in Rule 33 itself. Id. (citing Fed. Rule of Crim. Pro. 45(b)(2)). As the Second Circuit points out:
Read in conjunction with ... Rule 45(b), the defendant is ... required to file a timely motion for a new trial under Rule 33(b)(2) within the seven-day period specified.... [However], under Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion for a new trial within the specified time, the court may nonetheless consider that untimely underlying motion if the court determines that the failure to file it on time was the result of excusable neglect.
United States v. Owen, 559 F.3d 82, 84 (2d Cir.2009) (citing Fed.R.Crim.P. 33 advisory committee's notes (2005 Amendments)).
. The District Court also asked Kennedy’s counsel at oral argument on the motion for a new trial if he was arguing that trial counsel was ineffective in failing to challenge the chain of custody of the evidence in the Cadillac and Kennedy's counsel answered in the affirmative.
. See Lowenfield v. Phelps, 817 F.2d 285, 291-92 (5th Cir.1987) (holding that counsel was not deficient when he made a strategic decision not to challenge the chain of custody of weapons so that he could argue that others were implicated in the murders and that the sloppy police work reflected adversely on the state's entire case).
. If Kennedy’s counsel had objected to the chain of custody of the Cadillac, it is unclear whether the government would have been able to establish chain of custody. "To establish a chain of custody, the government need only show that it took reasonable precautions to preserve the evidence in its original condition, even if all possibilities of tampering are *639not excluded.” United States v. Dent, 149 F.3d 180, 188 (3d Cir.1998).
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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/8475200/
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OPINION
PER CURIAM.
Pro se appellant Linda Gardner challenges the District Court’s grant of summary judgment on behalf of Unum Life Insurance Company (“Unum”).1 For the following reasons, we will vacate the District Court’s judgment and remand for further proceedings.
I.
In July 2001, Gardner stopped working as an operating room nurse at Thomas Jefferson Hospital after she was diagnosed with avascular necrosis (“AVN”) in both knees. AVN is a progressive disease that results “from the temporary or permanent loss of the blood supply to the bones. Without blood, the bone tissue dies and causes the bone to collapse. If the process involves the bones near a joint, it often leads to collapse of the joint surface.” (SA *644at 660.) In the early stages of AVN, pain develops gradually, and if the disease progresses to the stage where the bone and joint surface collapse, “[p]ain may be severe enough to limit the patient’s range of motion in the affected joint.” (SA-662.) The treatment of choice for “for late-stage [AVN] and when the joint is destroyed” is total joint replacement. (Id. at 665.)
The month after Gardner was diagnosed with AVN, she underwent bilateral knee replacement surgery and began collecting short term disability payments through her policy with defendant Unum. The first surgery was not, however, successful, and Gardner underwent a second procedure on both knees in February 2002.
Unum approved Gardner’s claim for long-term disability benefits by letter dated February 18, 2002. The Policy’s definition of “disability,” however, changes after the employee has received benefits for 24 months, in this case March 2004. At that point, the employee is considered “disabled when Unum determines that due to the same sickness or injury, [she is] unable to perform the duties of any gainful occupation for which [she is] reasonably fitted by education, training, or experience.” (Id. at 73.)
The policy’s glossary defines gainful occupation as follows: “GAINFUL OCCUPATION means an occupation that is or can be expected to provide you with income at least equal to your gross disability payment within 12 months of your return to work.” (Id. at 93).
Several other definitions also are relevant. The glossary defines “gross disability payment” as “the benefit amount before Unum subtracts deductible sources of income and disability earnings.” (Id. at 94.) “Disability earnings” is defined as “the earnings which you receive while you are disabled and working, plus the earnings you could receive if you were working to your maximum capacity.” (Id. at 93.)
Long-term disability, maximum capacity, “means, based on your restrictions and limitations: ... beyond 24 months of disability, the greatest extent of work you are able to do in any occupation, that is reasonable available, for which you are reasonably fitted by education, training or experience.” (Id. at 94-95).
The medical history during the initial uncontested two year period of disability is relevant.
After her second surgery, Gardner was treated for pain management, and in June 2002, after complaining of pain in her ankles, Dr. Roy Friedenthal, her orthopedic surgeon, advised her to have another MRI and x-ray. Dr. Friedenthal reviewed the films, which showed “an irregularity” and a “discontinuity in the joint suiface.” (Id. at 277.) He further noted that the MRI “show[ed] a large lesion in the distal tibia as well as a defect in the dome of the talus.” (Id.)
In November 2002, Gardner began working part-time at a facility located near her home. (Id. at 240.) In an April 2003 statement submitted to Unum, she explained that she had “found a surgical center that will let me come in for a couple of hours once in a while to do lunch relief as an RN. It is on a per diem basis, so they call me when they need me. I have no set hours per week and some weeks I don’t work at all, sometimes 3-4 weeks in a row.” (Id. at 291.) Gardner stated that she could not work two days in a row and that after working she could do nothing but sit with her legs up. She nevertheless preferred to work because it helped her state of mind. (Id. at 296.) As to her day-to-day activities, Gardner cared for herself but spent most of the time “sitting or lying on the sofa watching TV. [She could] go out for an hour or two to do [her] shopping ..., but then [she had] to sit down with *645[her] legs up for a while after that.” (Id. at 291.)
Dr. Friedenthal completed Unum’s attending physician statement and attached it to Gardner’s April 2003 letter. He described her symptoms as unchanged, but noted that she now had AVN of the ankles. He then explained that although he had released her to work in her “own occupation,” she could work no “more than 10 hours a week,” and indicated that her current functional abilities were “3-4 hours” of sedentary activity “every other day.” (Id. at 293-95.) Dr. Friedenthal believed that these abilities would not change. (Id.)
In response to Unum’s request to clarify functional status for full-time sedentary work capacity, Dr. Friedenthal submitted a letter, on July 16, 2003, stating that Gardner:
“has reached maximum recovery with significant persistent symptoms primarily at the left knee with loss of flexion to 85 [degrees] and chronic pain with motion without instability. She has chronic pain in both ankles and prior workup has revealed [AVN] on the right. These conditions impair her ability to stand and walk even occasionally throughout a workday. She has achieved a level of activity that allows her to work for 10 hours a week and this appears to be at a maximum level. I do not anticipate any significant change in her clinical status, and, therefore, do not anticipate a significant change in her ability to be gainfully employed.
Her condition in her ankles may worsen with time and the status of her knees may also worsen with time and may contribute to an increased level of disability in the future.”
(Id. at 335.)
In November 2003, Gardner told Unum that there had been no change in her status, and that she had not recently seen Dr. Friedenthal because there was nothing more that he could do to help her. (Id. at 365.) Unum sought the opinion of Bethany Washburn, R.N., and asked her to review Gardner’s file to evaluate her “expected long term prognosis.” (Id. at 366.) Washburn concluded that it was “not clear what is preventing an increase in function over time, if current function is being tolerated.” (Id.) Unum also requested that its vocational consultant, Deede DeLay, review Gardner’s file to determine whether she “would be able to perform gainful occupation] if she had a full-time sedentary capacity.” (Id. at 369.) DeLay conducted a transferable skills analysis and identified several sedentary occupations for which she believed Gardner would be qualified. (Id. at 371.) A second analysis identified nursing occupations providing a gainful wage. (Id. at 376.)
On January 29, 2004, in a telephone call from Unum, Gardner described her pain as constant and reported that it increased with activity. She said that she mostly sits on the sofa with her feet elevated and that she could do some housework if she took breaks but that nearly everything caused her pain. (Id. at 390-91.) She also stated that nothing seemed to work for the pain except for narcotics, which doctors would not prescribe to her. (Id.)
On February 12, 2004, nurse consultant Kathy Pepin reported to Unum that:
“[b]ased on the medical history of [Gardner’s] conditions and surgical history, it appears that working 10 hours a week is her maximum level of activities. It appears that [Gardner] has pushed herself to do this capacity, even in pain. [Gardner] does have pathology of ankle AVN, for which standing and walking would cause pain and increased swelling. Will discuss with UPMP his analysis of the provided information.”
(Id. at 401.)
After receiving Pepin’s report, Unum asked physiatrist consultant Barry Gen-*646dron, D.O., to “comment on [Pepin’s] analysis and conclusion.” (Id. at 402.) Gendron notified the company that Dr. Friedenthal had not responded to a previous inquiry as to “why the claimant does not have greater sedentary capacity” and stated that he would contact him for clarification. (Id.)
On February 17, 2004, Unum wrote to Gardner that “[a] review has now been completed by our medical department. Based upon our review, it remains unclear why you would not have greater than 10 hours per week sedentary work capacity. So that we may better understand your current level of functionality, we are writing to Dr. Friedenthal.” (Id. at 410-11.)
The next day, Dr. Gendron faxed a letter to Dr. Friedenthal asking whether he “agreed with [Gendron’s] assessment” that Gardner could “work full-time in a sedentary job with only occasional standing or walking.” (Id. at 417-18.) Gendron asserted that Gardner currently worked “[ten] hours per week as an operating room circulating nurse” and opined that a “sedentary job would likely be less physically demanding than” her current position. (Id.)2 Further, Gendron stated that he “did not find any objective documentation detailing why Ms. Gardner would be unable to perform sedentary levels of activity (sitting 6 to 8 hours per day with only occasional walking) with no lifting greater than 10 pounds.” (Id.) At the end of the letter were two paragraphs, each with a blank signature line for Dr. Fried-enthal, as follows:
“[1] I agree that Linda S. Gardner has the capability to perform sedentary work activities for eight hours a day with no lifting greater than 10 pounds, only occasional standing or walking, and sitting 6-8 hours per day. (She is currently working 3 hours a day in a vocation that has greater than sedentary work requirements) ... [or]
I do not agree that Linda S. Gardner can work eight hours per day in a sedentary occupation for the following objective reasons.”
(Id. at 417.)
On March 1, 2004, Dr. Friedenthal examined Gardner and responded to Dr. Gendron’s letter. Dr. Friedenthal’s examination note stated:
“I do not believe that [Gardner] can work as an OR circulator full time. She could perform sedentary work on a full time basis, but needs accommodation with foot rest because of her extension contracture in the left knee and needs to be allowed to change her position frequently, as sitting for long periods of time tends to bring out cramping of quadriceps muscles. It is now two years since her replacement and I believe her level of disability will be chronic in nature.”
(Id. at 427.) Dr. Friedenthal additionally signed below the first paragraph prepared by Gendron, stating that Gardner could perform full-time sedentary activities. He added that Gardner “should be allowed to change her position frequently as required. Need footrest to accommodate knee cont-racture.” (Id. at 425-26.)
On March 12, 2004, Unum notified Gardner that it was discontinuing her benefits. The company explained that because its medical consultants were unclear as to why Gardner’s work capacity was limited to ten hours per week, it had contacted Dr. Friedenthal, who concluded that, with certain restrictions, Gardner could work in a full-time sedentary position. The notice *647then listed the following sedentary occupations that Unum’s vocational consultant determined would pay Gardner a gainful wage and that would accommodate the restrictions identified by Dr. Friedenthal: bill reviewer, managed health care manager, and insurance case manager. (Id. at 441-44.)
Through counsel, Gardner appealed administratively from Unum’s denial. In support of her claim, Gardner referred to various medical records and reports, a letter describing her pain and limitations in daily activities, articles describing AVN, and a letter from an insurance company advising that she did not receive a case management position for which she had interviewed. Gardner clarified that she worked in a colonoscopy facility, not as an operating room nurse as Gendron’s letter to Dr. Friedenthal had stated. She advised Unum that Gendron’s letter incorrectly described her job’s requirements as well as the hours that she worked and had irrevocably damaged her relationship with Dr. Friedenthal. She also submitted a vocational expert report from Charles A. Kincaid, Ph.D., who concluded that she could not earn a gainful wage.
Unum sought review of Gardner’s file by another consultant — nurse Richard Cole. Cole submitted a report concluding, among other things, that Dr. Friedenthal’s March 2004 restrictions “appear reasonable, except that the claimant may not be able to tolerate full time sedentary due to her pain level.” (Id. at 800.) He also surmised that Gardner’s capacity for prolonged sedentary activity was unclear but that she indicated that such activity was “significantly impacted due to pain that is best controlled with rest and elevation. Her reported impact pain has had on her life, again, would be reasonable and will likely not change for the better. She tolerates work to at least a sedentary level on a very sporadic basis, and it is not clear she would be able to tolerate more than that.” (Id. at 799-800.)
After receiving Cole’s report, Unum sent Gardner’s file to Dr. George Seiters for review. (Id. at 801.) He agreed with Cole’s summary of the orthopedic information, but determined that the clinical findings were “consistent with a degree of knee pathology that could be reasonably treated by limited weight bearing and frequent repositioning and should not be aggravated or made significantly symptomatic by sedentary activities.” (Id. at 815.) He thus concluded that it was reasonable for Gardner to work full-time in a sedentary capacity with the restrictions recommended by Dr. Friedenthal. (Id. at 814-17.)
On September 27, 2004, Unum notified Gardner that it was upholding the decision to deny her claim for disability benefits. (Id. at 819-21.) The notification report stated that “[o]ur medical consultant concludes that the medical documentation is consistent with the restrictions and limitations stated by Dr. Friedenthal ... for sedentary capacity....” (Id. at 820.) Unum then informed Gardner that an updated vocational assessment had concluded that she could earn a gainful wage in the following occupations: bill reviewer, insurance case manager, managed health care manager, and telephonic triage nurse. (Id. at 821.)
Thereafter, Gardner filed an action through counsel3 in the United States District Court for the District of New Jersey under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), for review of Unum’s deni*648al of her long-term disability benefits. The District Court granted Unum’s motion for summary judgment and denied Gardner’s cross-motion.
Gardner now appeals.
II.
We have jurisdiction to review the District Court’s order under 28 U.S.C. § 1291, and we review de novo a court’s decision granting summary judgment in an ERISA action. Smathers v. Multi-Tool, Inc., 298 F.3d 191, 194 (3d Cir.2002). “[Ejvery claim for relief involving an ERISA plan must be analyzed within the framework of ERISA.” Hooven v. Exxon Mobil Corp., 465 F.3d 566, 573 (3d Cir.2006).
The summary judgment standard requires us to resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). Summary judgment is appropriate only if “there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The rules are no different when there are cross-motions for summary judgment. Lawrence, 527 F.3d at 310.
Unum contends that the abuse of discretion standard applies because the policy gives Unum discretion to determine eligibility for benefits and to construe the policy’s terms. See Metropolitan Life Ins. v. Glenn, — U.S. -, 128 S.Ct. 2343, 2347-2348, 171 L.Ed.2d 299 (2008). However, before that standard is invoked, it is necessary to consider the posture of the litigation. Unum fails to discuss the important fact that the ruling in its favor was not the result of a trial, but of the grant of its motion for summary judgment. Some of the cases cited for application of the arbitrary and capricious standards are judgments entered after a bench trial in favor of the insurance carrier when the scales weighed in favor of affirming factual disputes in favor of the party holding a favorable judgment. However, summary judgments are not granted when factual disagreements exist. Consequently, Unum is not entitled to rely on inferences favorable to itself or disregard challenges of inaccuracy raised by Gardner.4
Unum relied heavily on Dr. Frieden-thal’s March 2004 evaluation, but Gardner asserts that it does not accurately reflect his medical opinion as to her functional abilities because it was based on false information about her job duties and the hours that she worked as stated in Dr. Gendron’s letter. Unum argues that the March 2004 evaluation constituted substantial evidence supporting its decision because Dr. Friedenthal examined Gardner the same day that he responded to Gendron’s letter. Moreover, Unum discounts Gardner’s assertion that the letter’s misinformation damaged her relationship with Dr. Friedenthal and that Dr. Frieden-thal did not, in fact, conduct an adequate physical examination before responding to Gendron. To resolve the inconsistency requires a weighing of the evidence to determine “the truth of the matter.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Moreover, Gardner’s assertion about the unreliability of Dr. Friedenthal’s March 2004 evaluation is supported by the fact *649that it is so inconsistent with the detailed reports supplied by him throughout the years, and as such it can best be described as aberrant. Viewing the record in Gardner’s favor, there is a serious question as to whether it may have been improper for Unum to seize upon it to deny Gardner’s claim. See Glenn v. MetLife, 461 F.3d 660, 672 n. 4 (6th Cir.2006), aff'd Metropolitan Life Ins. Co. v. Glenn, — U.S.-, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008).
In addition, there is a conflict as to the extent of Gardner’s part-time job activities. Unum contends that in a telephone conversation, she stated that at her job, “[s]he is busy running around to set up the operating room ... [and that] she is able to sit at least half of the time.” (SA at 240.) Gardner submitted an affidavit to the District Court asserting that she never described her job in this way.
Gardner also disputes that she was qualified for the jobs identified by Unum’s vocational consultants and argues that they did not engage in a competent evaluation. She contends that Unum determined that she was qualified for any job “within the nursing field” without considering how her skills and experience correspond to those required to perform the duties of a case manager, bill reviewer, or other jobs identified by Unum’s vocational consultants. Unum, on the other hand, asserts that its consultants considered all of the medical evidence as well as Gardner’s experience and background to conclude that she was qualified for the identified occupations.
The policy requires that the claimant be unable to perform the duties of “any gainful occupation” for which she is reasonably fitted by education, training, or experience. Unum was under a duty to make a reasonable inquiry into the types of skills Gardner possesses, and whether they transfer to another job in which she can be gainfully employed as defined by the policy. The record sheds little light on the depth of Unum’s vocational analyses, and Gardner has identified a dispute as to whether she possesses the qualifications to perform the tasks required by the occupations identified by Unum’s vocational consultants.
In considering the arbitrary and capricious aspect of the case, the District Court determined that Unum operated under a conflict of interest because of its position as the plan administrator and the payor of benefits. See Glenn, 128 S.Ct. at 2348. This is one factor that is examined in determining if an administrator abused its discretion by denying benefits. Id. at 2350. In Glenn, the Supreme Court explained that “the conflict of interest ... should prove more important (perhaps of great importance) ... [in] cases where an insurance company has a history of biased claims administration.” Id. at 2351. As an example of such an insurance company, the Supreme Court cited a law review article detailing the history of biased claims review by Unum. Id. The Court of Appeals for the Second Circuit also stated that “First Unum is no stranger to the courts, where its conduct has drawn biting criticism from judges.” McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 137 (2d Cir.2008) (citing Radford Trust v. First Unum Life Ins. Co., 321 F.Supp.2d 226, 247 (D.Mass.2004), rev’d on other grounds, 491 F.3d 21, 25 (1st Cir.2007)). Unum’s “history of deception and abusive tactics [can be] evidence that it was influenced by its conflict of interest as both plan administrator and payor.” See id.
Another matter considered in Glenn is whether the insurer/administrator emphasized “certain medical reports that favored a denial of benefits, [and ignored] certain other reports that suggested a contrary conclusion.” Glenn, 128 S.Ct. at 2352; see McCauley, 551 F.3d at 136-37.
*650In terminating benefits, Unum relied upon Dr. Friedenthal’s March 1, 2004 evaluation and on Dr. Seiters’s report, both of which suggested that Gardner was ineligible. However, Unum disregarded the well-reasoned opinions of two of its own consultants favoring the continuation of payments. Further, until it received the March 2004 communication from Dr. Friedenthal, Unum had persistently failed to credit his opinion about Gardner’s work capacity.
The District Court was confronted with the difficulties inherent in a pro se presentation of a complicated case and is entitled to commendation for the thorough and patient manner in which the litigation was treated. The able judge was well aware of the two standards of review and how they sometimes mesh in a certain circumstances. In some parts of the comprehensive opinion, the lines between the two standards became blurred and resulted in an unwitting evaluation of the record in favor of Unum. Left undetermined were a number of issues that require investigation, amplification, and explanation. Whether Unum’s denial of benefits will prove to be arbitrary and capricious is not before us at this point. The issue is not ripe for a ruling, and we need not discuss the law applicable to that issue which is applicable under uncontested facts.
We have treated this appeal with due regard for Gardner’s pro se status. However, if she wishes to continue with this complicated case, we strongly suggest that she retain a lawyer to represent her.
Because the summary judgment was inappropriate, it will be vacated. Among other measures on remand, the District Court may wish to consider remanding to Unum, see Smathers v. Multi-Tool, Inc., 298 F.3d 191, 200 (3d Cir.2002), or having further discovery or a trial on the merits.
The judgment will be vacated and the case remanded for further proceedings.
. Gardner's pro se brief in this appeal contests the District Court’s denial of her motion for reconsideration, which was docketed in the District Court after she filed her notice of appeal from the summary judgment order. Because Gardner did not file a new or amended notice of appeal within thirty days after the District Court entered the order denying the motion for reconsideration, we review the summary judgment decision only. See Fed. R.App. P. 4(a)(4)(B)(ii); U.S. v. McGlory, 202 F.3d 664, 668 (3d Cir.2000).
. After her claim was denied, Gardner contended that the information given to Dr. Friedenthal was incorrect.
. After filing a brief for Gardner in the District Court, her counsel withdrew and she proceeded pro se.
. Judicial review of an administrative decision is generally limited to the evidence presented to the administrator, see Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir.1997), but charges of fraud or mistake in the record are subject to scrutiny.
In this case, we discuss only material submitted to the District Court which apparently accepted Gardner’s pro se submissions as declarations. We approve that procedure in this case.
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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/8475202/
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OPINION
GARTH, Circuit Judge:
Appellant Joseph M. Strohl (“Strohl”) appeals from the order of the United States District Court for the Eastern District of Pennsylvania denying his 28 U.S.C. § 2254 petition for writ of habeas corpus. We will affirm.
I.
On December 26, 1986, Strohl and a confederate entered and burglarized the home of Ella Wunderly. Mrs. Wunderly, who was home at the time of the burglary, was assaulted, leaving her severely debilitated and possibly unconscious. Strohl returned to Mrs. Wunderly’s home the following day, on December 27, 1986, and again burglarized her home, joined this time by a different confederate than the day before. At the time that Strohl entered Mrs. Wunderly’s home for the second time, Mrs. Wunderly was still alive. The attack on Mrs. Wunderly left her in a coma from which she never awoke. She died more than seven years later, in April 1994.
After an investigation by the police department, Strohl was arrested and charged with the second burglary. He pled guilty and was sentenced in 1987. Before Strohl’s sentencing, the District Attorney’s office sent a letter to the judge advising the court Strohl had not been charged with having assaulted Mrs. Wunderly because the District Attorney’s office lacked any significant evidence implicating Strohl in the assault. The letter also noted that at the time of Strohl’s guilty plea it had been specifically stated that his plea was to the second burglary only. This was done to ensure that double jeopardy would not attach if sufficient evidence was gathered in the future to charge Strohl with the earlier assault and burglary, and — in the event of Mrs. Wunderly’s death — murder.
Mrs. Wunderly spent the duration of her life being cared for in hospitals and nursing homes. During the last few years of her life, Mrs. Wunderly sustained several unexplained injuries, including broken bones and a partially torn ear. She received treatment for these injuries at Le-high Valley Hospital Center. The prosecution did not elect to obtain the hospital reports associated with these incidents. Strohl alleges that, despite his best efforts, he was unable to obtain the reports for use *652during his defense. According to Strohl, these reports no longer exist.
In 1997, the District Attorney of Northampton County, Pennsylvania initiated an effort to investigate unsolved homicides in its jurisdiction. After reviewing the open cases, the District Attorney presented an application requesting that a grand jury be empaneled to review several such cases, one of which was the death of Mrs. Wun-derly. A grand jury was duly seated in March 1999, and, based upon new information obtained from witnesses who had been previously uncooperative, the grand jury issued a presentment recommending that Strohl be charged with criminal homicide of Mrs. Wunderly.
In March 2001, Strohl was tried on these charges and found guilty of second degree murder. He was later sentenced to life in prison. Strohl appealed, and the Pennsylvania Superior Court affirmed Strohl’s judgment and sentence on September 11, 2002. The Pennsylvania Supreme Court then denied allowance of an appeal on February 13, 2003. Strohl subsequently filed a pro se petition under the Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-46, which the trial court dismissed on June 15, 2004. The Pennsylvania Superior Court affirmed the denial of PCRA relief on May 13, 2005. The Pennsylvania Supreme Court again denied allowance of appeal on October 26, 2005.
II.
Strohl then filed his current 28 U.S.C § 2254 petition with the District Court, asserting eight grounds for relief. A United States Magistrate Judge issued a Report and Recommendation recommending that Strohl’s habeas claims be denied without an evidentiary hearing. Report and Recommendation, Strohl v. Grace, No. 06-cv-2708 (E.D.Pa. Mar. 27, 2007) (“Report and Recommendation”). The District Court approved and adopted the Report and Recommendation, and denied Strohl’s petition in its entirety without an eviden-tiary hearing. Order, Strohl v. Grace, NO. 06-cv-2708, 2007 WL 1200132 (E.D.Pa. Apr. 20, 2007).
Strohl filed a timely notice of appeal, and this Court granted a certificate of appealability with respect to the following issues: (1) whether the prosecution suppressed exculpatory evidence, i.e., certain of the victim’s hospital reports (“the hospital reports”), in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) whether Strohl was denied due process because of the delay in his criminal prosecution, including the failure to explore the cause of the death of the victim.
III.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. This Court has appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Because the District Court ruled on Strohl’s habeas petition without conducting an evidentiary hearing, this Court conducts a plenary review. McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir.2009).
In order to obtain habeas relief from his state court conviction and sentence, Strohl must satisfy the standards set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). McMullen, 562 F.3d at 236. AEDPA provides that, where, as here,
a habeas petitioner’s claim was adjudicated on the merits in state court, the petition may not be granted unless the state court decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or was based on an unreasonable determination of the facts in *653light of the evidence presented in the State court proceeding. Under the § 2254 standard, a district court is bound to presume that the state court’s factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.
Simmons v. Beard, 581 F.3d 158, 165 (3d Cir.2009) (quoting 28 U.S.C. §§ 2254(d) & (e)(1)) (internal citations and quotation marks omitted).
A state court decision “fails the ‘contrary to’ prong of AEDPA if the state court reaches a conclusion opposite to the Supreme Court’s own conclusion on a question of law or decides the case differently where the Supreme Court was confronted by a set of materially indistinguishable facts.” McMullen, 562 F.3d at 236. “Similarly, a state court ruling is considered an ‘unreasonable application’ if the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply.” Id. “A state court determination may constitute an unreasonable application even if the Supreme Court has not yet addressed the identical legal issue or fact pattern. Nevertheless, the unreasonable application test is an objective one — a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly.” Id. (quoting Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir.2005)) (quotation marks and alterations omitted).
IV.
Strohl alleges that the prosecution suppressed the victim’s hospital reports in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Pennsylvania Superior Court (“the state court”) rejected Strohl’s argument on the ground that Strohl failed to claim “that the Commonwealth had the Lehigh Valley Hospital Center reports in its possession at the time of the trial and knowingly withheld them.” Commonwealth v. Strohl, No.1954 EDA 2004, 880 A.2d 12 (Pa.Super.Ct. May 13, 2005) (“PCRA Appeal Opinion”) at 5.1
Since the state court adjudicated Strohl’s Brady claim on the merits, we apply the analysis set forth by AEDPA. Simmons, 581 F.3d at 164-65. We begin by determining whether the law applied by the state court is contrary to the law as determined by the United States Supreme Court. “In Brady v. Maryland, the Supreme Court held that due process forbids a prosecutor from suppressing evidence favorable to an accused upon request ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” United States v. Pelullo, 399 F.3d 197, 209 (3d Cir.2005) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194) (quotation marks omitted). “To establish a due process violation under Brady, then, a defendant must show that: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material either to guilt or to punishment.” Id. (quoting United States v. Dixon, 132 F.3d 192, 199 (5th Cir.1997) (quotation marks omitted)).
*654We have held that “possession” in the Brady context extends to material not within the prosecutor’s actual knowledge or possession, provided that the evidence is either (a) known to some other “arm of the state,” United States v. Perdomo, 929 F.2d 967, 971 (3d Cir.1991), or (b) “known to ... others acting on the government’s behalf in the case.... ” United States v. Reyeros, 537 F.3d 270, 281 (3d Cir.2008) (quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quotation marks omitted)).
Strohl argues that, under Perdomo, the prosecution had “possession” of the hospital reports for Brady purposes, and was therefore obligated to produce them. In Perdomo, however, we explained that whether information is deemed to be constructively possessed by the prosecutor— thereby obligating the prosecutor to obtain it under Brady — turns not on “whether the information is easy or difficult to obtain” but rather on “whether the information is in the possession of some arm of the state.” 929 F.2d at 971 (emphasis added). In other words, if the information is in the possession of some arm of the state, there may indeed be an affirmative obligation on the prosecution to obtain such information and disclose it. See id. However, if the information is in the possession of a third-party unrelated to the state — as was true in this case, where the hospital reports were in the possession of Lehigh Valley Hospital Center — Perdomo imposes no such obligation. See id. Accordingly, even assuming that, as Strohl argues, the prosecution could “readily” have obtained the hospital reports, Brief of Petitioner, Strohl v. Grace, No. 07-2495 (3d Cir. Mar. 3, 2009) (“Br. of Petitioner”) at 26, that fact is immaterial to our analysis.
The state court denied Strohl’s Brady claim on the grounds that Strohl failed to claim: (1) that the prosecution had the hospital reports in its possession; and (2) that the prosecution nonetheless knowingly withheld them. PCRA Appeal Opinion at 5. Indeed, Strohl acknowledges that the prosecution did not possess the hospital reports describing Mrs. Wunderly’s treatment at Lehigh Valley Hospital Center. Br. of Petitioner at 14. We therefore need not address any other Brady claim made by Strohl. The state court’s decision was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court. We also conclude that the state court’s finding was not based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, we affirm the District Court’s denial of Strohl’s petition for habeas relief on his Brady claim with respect to the hospital reports. See Weeks v. Angelone, 528 U.S. 225, 237, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).
V.
Strohl alleges that his constitutional right to due process was violated as a result of the prosecution’s decision to delay charging him with the death of Mrs. Wunderly until 1999, some five years after Mrs. Wunderly died. The Pennsylvania Superi- or Court denied Strohl’s claim of a due process violation because Strohl did not meet “his burden of showing actual prejudice.” Commonwealth v. Strohl, No.2097 EDA 2001 (Sept. 11, 2002) (“Direct Appeal Opinion”) at 5 (emphasis added).
The state court adjudicated Strohl’s due process claim on the merits; accordingly, we again apply the two-step analysis dictated by AEDPA. Simmons, 581 F.3d at 164-65 . We begin by determining whether the law applied by the state court is contrary to the law as established by the Supreme Court. It is well-settled that the two-part test set forth in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and further explained *655in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), is used to analyze a claim that a due process violation resulted from a pre-indictment delay.
Under Manon and Lovasco, a defendant “can make out a claim under the Due Process Clause only if he can show both (1) that the delay between the crime and the federal indictment actually prejudiced his defense; and (2) that the government deliberately delayed bringing the indictment in order to obtain an improper tactical advantage or to harass him.” United States v. Beckett, 208 F.3d 140, 150-51 (3d Cir.2000) (citing Marion, 404 U.S. at 325, 92 S.Ct. 455 and Lovasco, 431 U.S. at 789-90, 97 S.Ct. 2044); see also United States v. Ismaili, 828 F.2d 153, 167 (3d Cir.1987).2 Strohl contends that he was subject to actual prejudice as a result of the lost hospital reports. In addressing that claim, the Pennsylvania Superior Court, quoting from Strohl’s brief filed with that court, noted, “Strohl ... claims that he suffered actual prejudice due to lost medical records that ‘could be important,’ ” and “argues that the lost records ‘may’ have resulted in a different medical opinion regarding the cause of the victim’s death.” Direct Appeal Opinion at 5 (first emphasis in original). The state court found that Strohl’s usage of words such as “could” and “may” in his own brief constituted a tacit acknowledgment that his “argument is based purely upon speculation.” Id. On that reasoning, the state court found Strohl’s due process claim to be “without merit.” Id.
The state court’s decision was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court, nor was it based on an unreasonable determination of the facts in light of the evidence presented. We therefore affirm the District Court’s denial of Strohl’s petition for habeas relief on his due process claim. See Weeks, 528 U.S. at 237, 120 S.Ct. 727.
VI.
The District Court correctly denied Strohl’s Brady and due process claims, and we will affirm its judgment on both.
. “In considering a § 2254 petition, we review the ‘last reasoned decision’ of the state courts on the petitioner's claims.” Simmons, 581 F.3d at 165 (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir.2008)). Since the last reasoned decision by a state court on Strohl’s Brady claim was the Pennsylvania Superior Court’s memorandum opinion dated May 13, 2005, our review of the Brady issue is focused on that decision.
. Strohl argues that we should abandon the "improper motive” requirement and instead adopt the position of other circuits which, according to Strohl, have held that even a showing of mere negligence on the part of the prosecutor is sufficient to satisfy that element of the due process claim. We are of course bound by our circuit precedent, but nevertheless note that it is unlikely that Strohl’s claim would succeed even under the standard he proposes. In contrast to the scenario in Howell v. Barker, 904 F.2d 889, 895 (4th Cir.1990), prosecutors here did not delay merely because of their own convenience and certainly do not admit negligence. Nor was the delay a result of prosecutorial error, as was the case in United States v. Ross, 123 F.3d 1181, 1185 (9th Cir.1997). Rather, the delay in this case was due to an initial dearth of sufficient evidence against Strohl that was subsequently ameliorated by the grand jury's 1999 investigation. Even under the diluted standard proposed by Strohl, such a well-justified delay would not constitute prosecutorial negligence. United States v. Moran, 759 F.2d 777, 783 (9th Cir.1985); United States v. Swacker, 628 F.2d 1250, 1254 n. 5 (9th Cir.1980).
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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/8475206/
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OPINION
BARRY, Circuit Judge.
Keith Stouch appeals from the order of the District Court granting defendants’ *663motions for summary judgment. We will affirm.
I.
Stouch became a member of the Irving-ton, New Jersey Police Department in August 1994, and was terminated on December 31, 2003 after he was found to be psychologically unfit for duty. In essence, Stouch believes that he was retaliated against because of his speech criticizing the police department, and discriminated against because of a disability, in violation of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”).
It is apparent that Stouch repeatedly complained about various policies, conditions, and incidents in the police department over the years, but for the most part, he has failed to set forth with any specificity the dates, content, and context of what he said, and to whom. We cite but a few of those numerous complaints. He complained, for example, that he was asked to falsify reports on at least two occasions, and although he believed it was “commonplace” for other officers to falsify their reports, he could not identify any specific instances. (App. at 60.) He also complained that officers and supervisors falsified their time sheets and slept in their cars or watched television at the police station rather than patrolling, and that there was a practice of not properly responding to 911 calls. He complained, as well, that officers abused the sick leave policy by blatantly ignoring it and suffering no repercussions, although he admitted that he did not have access to other officers’ medical records or personnel files. He was outspoken about the conditions of the communications room, where he worked periodically, complaining that it was moldy, uncomfortably warm, and infested with cockroaches and mice.1 In March 2003, he met with an FBI agent to report that he believed that Chief Michael Chase had been involved in illegal activity concerning stolen goods sometime between 1980 and 1985.
Stouch believed that he was retaliated against, primarily by enforcement of the sick leave policy, because he spoke out about what he perceived to be improprieties in the police department. The sick leave policy provides for “sick checks” whereby officers appear unannounced at the sick officer’s home to ensure that he is actually at home recuperating. Stouch testified that officers appeared at his house at night to conduct sick checks. He did not claim that these visits violated the sick leave policy, but rather that they violated his constitutional rights, and that the policy was enforced only against him. He also believed that the grooming policy, which he purposefully violated, was disparately enforced against him. In a report regarding Stouch’s grooming policy violation, a police captain stated:
Officer Stouch is constantly defiant of lawful authority in matters involving his actions within the agency. He makes a point of his defiance by threatening legal action and claiming to be acting on advice of counsel. On other occasions he has made even written demands of supervisors to report to him in writing their reasons for actions taken by them and gets upon his “soapbox” in gatherings of officers expressing his prowess. I believe he is generally a good and extremely competent police officer however he takes pride in his open insubordination to every act he does not personally agree with and looks to make “a point” whenever possible.
*664(App. at 236.) Finally, Stouch believed that his assignment to the communications room was in retaliation for having “complained about that room constantly.” (Id. at 90.)
Stouch went on sick leave in July 2003 after an incident with another officer, during which Patrolman Brian Rice allegedly threatened him. Stouch’s physician, Dr. Lawrence Eisenstein, sent a letter to Chief Chase which stated that Stouch had been diagnosed with post-traumatic stress disorder (“PTSD”), which he believed had been triggered by the incident with Patrolman Rice. Dr. Eisenstein stated that Stouch was fit to carry his weapon and return to work as of September 30, 2003. He requested that Stouch be exempted from the sick leave policy requirements and be permitted to leave his house while recuperating.
Stouch was ordered to submit to a fitness for duty exam. Alvin Krass, Ph.D. evaluated Stouch and found that he did not have any of the “fears, concerns or responses that are noted with individuals who are suffering from Post-Traumatic Stress.” (App. at 207.) Dr. Krass found that some of Stouch’s responses to the psychological testing indicated a “sense of resistance toward authority.” (Id.) Dr. Krass concluded that Stouch “is not fit to return for work as a police officer” because his test results “support the impression that he is a significantly, if not profoundly, emotionally maladjusted and disturbed person in need of continuing professional care.” (Id. at 209.) Stouch was also evaluated by John Motley, M.D., who rejected the PTSD diagnosis and diagnosed him with a personality disorder with paranoid and narcissistic traits which “interfere[s] [with] his ability to work cooperatively within the rules of his department.” (Id. at 205.) Dr. Motley opined that Stouch “will continue to be a constant irritant to his superiors and fellow officers.” (Id.)
Stouch was served with a Preliminary Notice of Disciplinary Action which alerted him that he had been charged with inability to perform his duties and faced removal from his position. A hearing was held on December 16, 2003, but he did not attend. The hearing officer found that he had been adequately notified and concluded that the department had appropriately dismissed him because he was psychologically unfit to serve as a police officer. Stouch was formally terminated as of December 31, 2003. He appealed his dismissal, and the dismissal was upheld by an administrative law judge (“ALJ”) after four days of hearings. The ALJ found that “Stouch’s history of employment in the Department demonstrates a longstanding and consistent pattern of unwillingness or inability to conform his conduct to that required of a municipal police officer.” (App. at 223.) Stouch appealed to the Merit System Board, which affirmed on February 1, 2007.
Meanwhile, on December 19, 2003, Stouch, joined by his wife, filed a complaint in the U.S. District Court against Irvington Township, the Irvington Police Department, and Police Chief Michael Chase, a complaint later amended to also name Police Director Michael Damiano as a defendant. The amended complaint stated claims of, inter alia, First Amendment retaliation, violation of Stouch’s due process rights, violations of the ADA and NJLAD, and loss of consortium. On June 30, 2008, the District Court granted defendants’ motions for summary judgment. This timely appeal followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting summary judgment is pie-*665nary, and we apply the same standard as the District Court to determine whether summary judgment was proper. Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir.2009); see Fed.R.Civ.P. 56(c) (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 and that the movant is entitled to judgment as a matter of law”). While we view the facts in the light most favorable to Stouch as the non-moving party, he “must introduce more than a scintilla of evidence showing that there is a genuine issue for trial; [he] must introduce evidence from which a rational finder of fact could find in [his] favor.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005) (citation and internal quotations omitted).
III.
A. First Amendment Retaliation
“[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garceta v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In order to succeed on his First Amendment retaliation claim, Stouch must demonstrate “that his activity is protected by the First Amendment, and that the protected activity was a substantial factor in the alleged retaliatory action.” Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009).2 “A public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.” Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir.2006) (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951).
Stouch’s primary argument before us is that he was terminated in retaliation for his speech regarding: (1) falsification of time sheets; (2) falsification of reports; (3) improper responses to 911 calls; and (4) racial discrimination and sexual harassment in the department. It is difficult to identify the exact speech to which Stouch refers, much less when and in what context it took place. See Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir.2001) (noting the importance of the “content, form, and context of the activity in question”). Even assuming arguendo that Stouch’s “speech” was protected by the First Amendment,3 there is no evidence that this speech was in any way related to, let alone a substantial factor in his termination. While Stouch is correct that this is a factual question, Gorum, 561 F.3d at 184, in order to survive a motion for summary judgment, he was required to set forth sufficient evidence that would permit a *666reasonable jury to reach the conclusion he would have them reach. Hill v. City of Scranton, 411 F.3d 118, 127 (3d Cir.2005). Stouch simply did not do so.
Accordingly, to the extent that Stouch engaged in activities protected by the First Amendment, the District Court correctly found that no reasonable jury could conclude that his speech was a “substantial factor” in his termination.
B. Discrimination on the Basis of Disability
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ... [the] discharge of employees ... and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, a plaintiff must show that he (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir.2006). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff then bears the burden of establishing that this proffered reason is a pretext for discrimination.
The District Court found that Stouch did not make out a prima facie case because he did not demonstrate that he had a disability. Stouch argues before us that he is disabled because his neck and back surgeries, necessitated by his work injuries, “precluded [him] from doing work that involved lifting and carrying.” (Appellant’s Br. at 61.) He also mentions, without elaboration, his diagnosis of PTSD. He argues that he was otherwise qualified to be a police officer in light of his physician’s opinion that “there would be no problem with [Stouch] carrying out his daily duties as a police officer.” (App. at 131.)
But assuming arguendo that Stouch has made out a prima facie case, defendants have set forth legitimate, non-discriminatory reasons for his termination. The consulting psychologist found that Stouch was psychologically unfit for duty, and the consulting psychiatrist diagnosed him with a personality disorder that interfered with his ability to work cooperatively as a police officer. His termination was affirmed by the ALJ after a hearing and by the Merit System Board.
There is no evidence that the stated reasons for Stouch’s termination were a pretext for the defendants to discriminate against him on the basis of a disability. As we have explained:
In order to prove the employer’s explanation is pretextual, the plaintiff must “cast [] sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication ... or ... allow[ ] the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994). A plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either “(i) discrediting the employer’s proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Id. at 764.
*667Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007) (alterations in original). Stouch has failed to carry this burden.4
C. Retaliation in Violation of the ADA and NJLAD
The ADA prohibits discrimination against an individual who has “opposed any act or practice made unlawful by [the ADA]” or who has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the ADA. 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation under the ADA, Stouch was required to show: “(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.” Williams v. Phila. Hous. Auth. Police Dept., 380 F.3d 751, 759 (3d Cir.2004) (internal quotations and citations omitted). A plaintiff need not be “disabled” under the ADA to prevail on a retaliation claim. Id. at 759 n. 2. The McDonnell Douglas burden-shifting framework also applies to ADA retaliation claims. Id. at 760 n. 3.
Stouch has not explained why any of his activities — including his request for a different light duty job, his complaint to OSHA, and his request for exemption from the sick check policy — are protected under the ADA. His complaints to supervisors and OSHA about the communications room were not related to any disability but, rather, focused on his dissatisfaction with the conditions of the room. With respect to his physician’s request that he be “allowed to leave his house freely without potential retaliatory actions by the [police] department” (App. at 131), he does not explain why this constituted a request for accommodation based on a disability. In any event, as we have already described, defendants have asserted legitimate, non-discriminatory reasons for Stouch’s termination and Stouch has failed to demonstrate that these reasons were a pretext for unlawful retaliation.5
D. Hostile Work Environment
To establish a cause of action for a hostile work environment under the NJLAD, a plaintiff must demonstrate “that the complained-of conduct (1) would not have occurred but for the employee’s protected status, and was (2) severe or pervasive enough to make a(3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive.” Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 803 A.2d 611, 625 (2002) (citing Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993)). There is simply no evidence to support Stouch’s claim that the sick leave policy *668was enforced against him because of comments he made about racial discrimination.
E. Due Process
Finally, Stouch alleges that his due process rights were violated because, although he received a notice of the disciplinary hearing which led to his termination, he believed that the date of the hearing had been changed and he therefore did not attend. It is clear, however, that the procedural protections afforded him were more than adequate to satisfy the due process requirements of notice and opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Stouch received notice of the December 16, 2003 hearing and the charges against him, and it is unclear why he did not attend. The hearing was held in Ms absence after the hearing officer concluded that he had received adequate notice. He appealed the hearing officer’s decision upholding his termination to the Office of Administrative Law, and the AL J held a four-day hearing. Stouch then appealed this decision to the Merit System Board, which affirmed. Accordingly, Stouch’s due process argument is without merit.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. Stouch filed a complaint about the room's conditions with the Occupational Safety and Health Administration (OSHA) in June or July 2003.
. If Stouch satisfied both factors, the burden would shift to the defendants to show that “the same action would occur if the speech had not occurred." Gorum, 561 F.3d at 184.
. Because neither the District Court nor the parties addressed whether Stouch’s “speech” was made as a citizen or in the course of his duties as a police officer, for ease of analysis, we will also assume that Stouch spoke as a citizen. To the extent that Stouch has adequately identified the speech to which he is referring, police misconduct is indeed a matter of public concern. See Baldassare, 250 F.3d at 195 (noting that attempts "to bring to light actual or potential wrongdoing or breach of public trust” can constitute a matter of public concern) (internal quotations and citation omitted); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir.1994) ("Disclosing corruption, fraud, and illegality in a government agency is a matter of significant public concern.”).
. Stouch also argues that he was discriminated against on the basis of a disability in violation of the NJLAD. N.J. Stat. Ann. § 10:5-4.1. A plaintiff's burden to establish a prima facie case of discrimination under the NJLAD is less onerous than under the ADA, Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir.1998), but the Supreme Court of New Jersey has otherwise adopted the McDonnell Douglas burden-shifting framework. Viscik v. Fowler Equip. Corp., 173 N.J. 1, 800 A.2d 826, .833-34 (2002). Therefore, the District Court properly granted summary judgment on this claim as well.
. Because we employ the same test to evaluate a claim of retaliation under the NJLAD, Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 961 A.2d 1167, 1192 (2008), Stouch’s claim of retaliation in violation of the NJLAD also fails.
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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/8475208/
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OPINION
BARRY, Circuit Judge.
This case arises out an unfortunate workplace accident that occurred in Newark, New Jersey when Christos Ortzian, appellant herein, fell from the platform of a stationary mixing truck. Ortzian was seriously injured, and the effects of the fall continue to manifest themselves through migraines, seizures, anxiety, and related medical problems. He sued the designer and manufacturer of the mixing truck’s platform, McNeilus Truck & Manufacturing, Inc. (“McNeilus”), alleging that the platform was defectively designed and lacked appropriate warnings. McNeilus moved for summary judgment, the District Court granted the motion, and Ortzian now appeals. We will affirm.
I. BACKGROUND
At the time of the accident, Ortzian was employed as a concrete mixing truck driver by Eastern Concrete. McNeilus designed and manufactured the mixer portion of the truck on which Ortzian worked. Ortzian’s primary task was to deliver concrete, which was mixed and poured into his truck while it was on Eastern Concrete’s premises, to the appropriate locations in a “professional and respectable manner.” (Appellee’s App. at 182.) Once delivery was complete, he was responsible for cleaning the “charge hopper,” which is the mechanism used to transfer the concrete from the mixing truck to a designated location. To cany out this task, he would climb a ladder permanently affixed to the rear side of the truck to an elevated platform measuring approximately twenty-four by twelve inches. While standing on this platform, he would use a hose to wash away any cement residue on the charge hopper.
The elevated platform that Ortzian used on the day of the accident was surrounded on three sides by a single, steel railing. The railing was approximately thirty-three inches above the base of the platform, and the platform had a metal toe plate that extended up a few inches from its edge. The railing and toe plate encircled the platform except for the portion where the ladder met the platform. That opening measured roughly eighteen and a half inches. A truck operator stepped on and off the platform from the ladder through that opening. There were no other safety features on the platform.
On July 27, 2005, Ortzian was standing on his truck’s platform cleaning the charge hopper with the water hose he was holding in one hand. As there were no witnesses and Ortzian’s memory of the incident is poor, the details of what happened next are largely unknown. Just before falling nine to twelve feet to the ground, Ortzian recalls having both of his feet on the platform and facing the truck. He does not remember in which hand he held the hose, where his other hand was, or whether he was standing or crouching. Ortzian also has no recollection of whether he fell forward, backwards, over the railing, under it, or through the gap where the railing met the platform. It is unclear whether he lost consciousness before he fell or upon hitting the ground, but he does recall it being a “[h]ot, hot” day. (Id. at 156.) Medical *670reports of the incident note that paramedics arrived at the scene to find Ortzian lying on the pavement beside the mixing truck.
Ortzian filed suit against McNeilus, and the case was removed to the U.S. District Court for the District of New Jersey. By the time McNeilus filed its motion for summary judgment, two claims were remaining: a design defect claim and a failure to warn claim.1 Among Ortzian’s evidence was the testimony of his expert, Robert Reed, who proposed several safety features that he claims would have corrected the alleged defect in the platform’s design. The District Court granted summary judgment on the ground that Ortzian failed to raise a material dispute “as to whether the alleged defects caused his injury.” (App. at 52.) The Court found that, notwithstanding Reed’s testimony as to how the platform was defective without some kind of guard to protect an individual from falling through the eighteen and a half inch gap in the railing or in the space between the platform and the railing, any proposed modifications to the product’s design were useless without evidence of causation. Absent evidence of how Ortzian fell, said the Court, “a jury would be left to speculate as to whether McNeilus’ alleged negligence in not including the proposed modifications was the cause of Mr. Ortzian’s injuries.” (Id. at 54-55.)
II. STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. We “exercise plenary review over the District Court’s decision to grant summary judgment,” and apply the same standard that it should have applied when ruling on the motion. Doroshow v. Hartford Life and Accident Ins. Co., 574 F.3d 230, 233 (3d Cir.2009); see Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770-71 (3d Cir.2009). Thus, we should only affirm if “there is no genuine issue as to any material fact” and the defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding whether there is a genuine issue of material fact, we “view the facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor.” Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 72-73 (3d Cir.1996) (citations omitted); see Busch v. Marpie Newtown Sch. Dist. 567 F.3d 89, 95 n. 7 (3d Cir.2009).
III. DISCUSSION
Ortzian argues that there was sufficient circumstantial evidence to establish that had the proposed protective measures been in place, he would not have fallen from the platform. In response, McNeilus argues that Ortzian’s theory of causation is too speculative given that he has failed to show that the product was defective without those proposed protections and that the alleged defects caused his injuries.
This case is before us based on the diversity of the parties and, therefore, New Jersey tort law applies. See Lafferty v. St. Riel, 495 F.3d 72, 75 (3d Cir.2007). One of the elements of a design defect claim in New Jersey requires that the plaintiff show that the defect caused injury to a foreseeable user. Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710, 716 (1993). Indeed, “[c]ausation is a fundamental requisite for establishing any product-liability action,” and this requires a plaintiff to demonstrate that the “defect in the product was a proximate cause of the injury.” Id. “[Circumstantial evidence, as a basis for deductive reasoning in the determination of civil issues, is defined as *671‘a mere preponderance of probabilities.’” Kita v. Borough of Lindenwold, 305 N.J.Super. 43, 701 A.2d 938, 941 (N.J.Super.App.Div.1997) (quoting Jackson v. Del. L. & W.R. Co., 111 N.J.L. 487, 170 A. 22, 24 (N.J.1933)). Although such evidence may be a sufficient basis for decision, the circumstances must be sufficiently strong that they can reasonably form the basis of a jury’s conclusion. See Fedorczyk, 82 F.3d at 74. Ortzian acknowledges that the circumstances of this case leave crucial questions unanswered.
As the District Court noted, our decision in Fedorczyk drives the analysis here. In Fedorczyk, the plaintiff slipped while taking a shower in her cabin bathroom aboard a cruise ship. Although the floor of the bathtub was equipped with four anti-skid strips, the plaintiff was unable to recall if, at the time of the fall, her feet were on the strips or in the slippery space between them. Her expert opined that there was not sufficient slip protection, but he also conceded that it would be impossible to prevent slips altogether given the presence of liquid soaps used during bathing. Nonetheless, he concluded that the lack of sufficient anti-slip protection caused the injury. The District Court granted summary judgment for the vessel operator, and we affirmed, holding that “the expert’s opinion that inadequate stripping caused Fedorczyk’s injuries is not based on any direct evidence or circumstantial evidence of where she was standing when she fell.” Id. at 75. We found that because “[n]o evidence presented tends to prove Fedorc-zyk was standing either on or off the stripping at the time she fell,” without that evidence, the jury would be left to speculate as to whether the vessel operator’s negligence in failing to make the tub more slip resistant was the cause of the injury. Id.
Ortzian’s attempt to distinguish his case from Fedorczyk is unavailing. He argues that, unlike Fedorczyk, his case “concentrates not on ‘the fall’ but on the absence of guarding to check or stop the fall.” (Appellant’s Br. at 23.) We disagree. We found that a key problem for the plaintiff in Fedorczyk was that she could not recall whether her feet were on the anti-slip strips at the time she fell, because if they were, she could not show that the vessel operator’s failure to provide sufficient protection caused her fall. Similarly, Ortzian did not know how he fell from the platform and, thus, he cannot say whether one of Reed’s proposed modifications would have prevented him from doing so.
Ortzian argues that his expert’s testimony buttons up this causation problem. Reed’s recommendations for “a swiveling J- or T — bar and the slide-up mid-rail for the gate area,” as well as a “mid-rail around the platform perimeter,” might have prevented falls both through the eighteen inch gap in the railing where the ladder meets the platform and through the space that exists between the railing and the floor of the platform. (Id. at 25.) The District Court, however, found that even assuming these untested protections were in place, the possibility still would exist that Ortzian could have fallen over the railing. In responding to this “third way” that he could have fallen, Ortzian points to the following testimony from his expert:
Question: Are you saying that if you encircle the top of the platform, there is no possible way anybody could fall?
Reed: No, as I stated, someone intentionally could jump over.
Question: I’m not talking about intentionally. I’m talking about accidentally-
Reed: I’m sure there would be some incident of negligence that could happen but in the normal task, the normal task, no.
(Id.) This testimony, however, is not as helpful as Ortzian might wish. Reed does *672nothing to explain “normal task,” which is important given that all of the facts as to how Ortzian was positioned before the fall, such as the location of his free hand, are unknown. Reed also concedes that “some incident of negligence” could have caused a person to fall over the railing. (Id.) This, too, is a crucial point because it is impossible to foreclose the possibility that Ortzian failed to take appropriate measures to ensure his own safety, such as, for example, by holding the railing with his free hand. In sum, it is not clear that any of Reed’s proposed modifications, including encircling the top of the platform, would have prevented a fall.
IV. CONCLUSION
Because a jury would be required to rely on sheer speculation as to how Ortzian fell and, thus, whether any of the alleged defects was the cause of that fall, summary judgment was properly granted. The order of the District Court will be affirmed.
. Ortzian conceded that it was appropriate to grant summary judgment on the failure to warn claim. As such, that issue is not before us on appeal. (Appellant's Br. at 15 n. 3.)
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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/8475210/
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OPINION
PER CURIAM.
Pedro Arturo Crisostomo-Roclriguez petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on February 26, 2008. For the reasons that follow, we will dismiss in part and deny in part the petition for review.
I. Background,
Because we write solely for the benefit of the parties, we will set forth only those facts necessary to our analysis. Crisosto-mo is a native and citizen of the Dominican Republic who has been living in the United States as a lawful permanent resident. In November 2005, Crisostomo pleaded guilty in the Court of Common Pleas of York County, Pennsylvania, to four counts of delivery of cocaine and one count of conspiracy to deliver cocaine. He was sentenced to a term of five to ten years of imprisonment and is currently incarcerated.
Crisostomo was served with a notice to appear in October 2006. After a hearing, the Immigration Judge (“IJ”) concluded that Crisostomo is removable for having-been convicted of an aggravated felony, see INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii) ]1, and for having been convicted of a controlled substance violation, see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i) ].
Cirsostomo appealed. On February 26, 2008, the BIA issued a decision adopting and affirming the IJ’s decision and dismissing the appeal. This timely counseled petition for review followed.
II. Analysis
On appeal, Crisostomo does not dispute that he is removable for violating a law related to a controlled substance. See INA § 237(a)(2)(B)© [8 U.S.C. § 1227(a)(2)(B)© ]. He disputes only the conclusion that his conviction qualifies as an aggravated felony under INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii) ] and that, as a result, he is ineligible to seek cancellation of removal under INA § 240A(a)(3) [8 U.S.C. *674§ 1229b(a)(3) ] (“The Attorney General may cancel removal ... if the alien ... has not been convicted of any aggravated felony.”).
We have jurisdiction to review a final order of removal pursuant to INA § 242(a)(1) [8 U.S.C. § 1252(a)(1) ]. Because the BIA adopted the IJ’s findings and discussed the IJ’s decision, we review both the decisions of the IJ and the BIA. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We consider de novo the legal question of whether Crisostomo’s conviction qualifies as an aggravated felony. See Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir.2008). We provide “appropriate deference to the agency’s interpretation of the underlying statute in accordance with administrative law principles.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir.2005).
A.
In the proceedings before the IJ, the Government submitted two items to establish Crisostomo’s state court drug conviction: (1) the Form 1-213 “Record of De-portable/Inadmissible Alien,” A.R. 60-62; and (2) the guilty plea colloquy from the state court proceedings, A.R. 63-65. The BIA upheld the IJ’s findings that the Form 1-213 identified that Crisostomo violated 35 P.S. § 780-113(a)(30) (prohibiting “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act ....”) and that the guilty plea colloquy was consistent with a conviction under that statute.
Crisostomo argues that the only evidence that actually sets forth the statute of conviction is the Form 1-213, which, according to Crisostomo, “has only limited reliability as to the actual statutory basis for an alien’s conviction....” See Petitioner’s Br. at 9. Crisostomo acknowledges that, absent evidence that the document is erroneous or was obtained by duress, the BIA considers a Form 1-213 to be “inherently trustworthy” and admissible to prove deportability. See Matter of Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (BIA 1999); Matter of Barcenas, 19 I. & N. Dec. 609 (BIA 1988). Crisostomo does not argue that the Form 1-213 was erroneous or obtained by duress. Instead, he offers the apparently novel legal argument that the Form 1-213 is inadequate if unaccompanied by the underlying court record specifying the statute of conviction.
The Government responds that we may not consider this argument because Crisos-tomo raised it for the first time before this Court. After a close review of the record, we must agree. As a general rule, we lack jurisdiction to review claims that were not administratively exhausted. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1) ]. Cri-sostomo never argued to the IJ or BIA that it was legal error to consider the Form 1-213 in conjunction with the plea colloquy, or that the Form 1-213 was not admissible to establish the statute of conviction. Accordingly, we must dismiss this claim because Crisostomo failed to exhaust his administrative remedies. See Abdul-rahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003).
B.
We may, however, review Crisostomo’s claim to the extent he argues, as he did before the BIA, that the guilty plea colloquy was not sufficient evidence to sustain a finding that he was convicted under 35 P.S. § 780-113(a)(30) (prohibiting “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act....”). The government bore the burden of proving Crisostomo’s conviction by clear and convincing evidence, and the removal decision *675must rest upon “reasonable, substantial, and probative evidence.” See INA § 240(c)(3)(A) [8 U.S.C. § 1229a(e)(3)(A) ].2
As previously discussed, the Government submitted the Form 1-213, which set forth that Crisostomo was convicted under 35 P.S. § 780-113(a)(30). The Government also submitted Crisostomo’s guilty plea colloquy before the Court of Common Pleas of York County. In the colloquy, Crisostomo acknowledged that, on four occasions, he “committed the offense of delivery of controlled substance ... [he] had cocaine in [his] possession and [he] delivered it to another person.” A.R. 63.
The IJ concluded that Crisostomo’s plea colloquy was consistent with a conviction under 35 P.S. § 780-113(a)(30). The BIA adopted the IJ’s conclusion. We agree with this determination. In the colloquy, Crisostomo admitted that he possessed cocaine and delivered it to another person. These admissions establish the necessary legal elements for a conviction under Pennsylvania’s statute prohibiting delivery or possession with intent to deliver a controlled substance. See 35 P.S. § 780-113(a)(30).
C.
The drug offense to which Crisostomo pleaded guilty is a felony under Pennsylvania law. See 35 P.S. §§ 780-113(a)(30), (f). To determine whether this state felony drug offense constitutes an “aggravated felony” for purposes of the INA, the IJ employed the “hypothetical federal felony” approach. See Garcia v. Att’y Gen., 462 F.3d 287, 291 (3d Cir.2006). Under the hypothetical federal felony approach, the offense of conviction is compared to the federal Controlled Substances Act to determine if it is analogous to an offense under that Act.3 See Gerbier v. Holmes, 280 F.3d 297, 305, 315 (3d Cir.2002).
Crisostomo argues that the IJ “erred in determining that the Petitioner’s offense constituted a hypothetical federal felony because it does not appear that the [Petitioner’s] state offense is analogous to any federal felony for which he could be prosecuted.”4 Petitioner’s Br. at 26. Crisostomo’s claim has two parts: first, he argues that because the colloquy does not specify the amounts of cocaine involved in his crimes, it cannot be properly estab*676lished that he committed any crime that is analogous to a federally punishable crime; second, he argues that the IJ erred by failing to specify the federal statute under which his state crime could hypothetically be punished.
Again, the Government responds that Crisostomo did not raise these arguments below. We once again agree. Crisosto-mo’s claims are unexhausted and, accordingly, we will not consider them. See Ab-dulrahman, 330 F.3d at 594-95.
III. Conclusion
For the foregoing reasons, we will dismiss in part and deny in part the petition for review.
. Under INA § 101 (a)(43)(B) [8 U.S.C. § 1101(a)(43)(B) J, the term "aggravated felony” means, inter alia, "illicit trafficking in a controlled substance.”
. Because Crisostomo does not contest re-movability for violating a controlled substance law, the Government argues that the question of whether Crisostomo was convicted of an "aggravated felony” pertains only to the issue of whether he is eligible for cancellation of removal. Accordingly, the Government argues that Crisostomo bore the burden of establishing by a preponderance of the evidence that he did not commit an aggravated felony. See INA § 240(c)(4)(A)(i) [8 U.S.C. § 1229a(c)(4)(A)(i) ]. Because we will affirm the conclusion that the Government met its affirmative burden to establish the aggravated felony conviction through clear and convincing evidence, we necessarily also conclude that Crisostomo also did not establish by a preponderance of the evidence that he was not convicted of an aggravated felony.
. INA § 101(a)(43)(B) [8 U.S.C. § 1101(a)(43)(B) ] defines an "aggravated felony” to include "illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of Title 18).” 18 U.S.C. § 924(c)(2) defines a “drug trafficking crime” to include "any felony punishable under the Controlled Substances Act (21 U.S.C. §§ 801, et seq.).”
.We note that we have held that a conviction under 35 P.S. §§ 780-113(a)(30) is analogous to a conviction under 21 U.S.C. § 841(a)(1), which prohibits the knowing or intentional "distribution] ... or possession] with intent to ... distribute” a controlled substance, for example, cocaine. See Jeune v. Att’y Gen., 476 F.3d 199, 205 (3d Cir.2007). This federal crime is a felony because it carries a maximum penalty in excess of one year. 21 U.S.C. § 841(b)(1)(C) (providing for a maximum sentence of 20 years); 18 U.S.C. § 3559 (providing that, if the crime prescribes a maximum sentence of more than one year, it is a felony).
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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/8475212/
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OPINION
BARRY, Circuit Judge.
This appeal is taken from a November 12, 2008 order of the District Court denying appellants’ application for attorneys’ fees pursuant to 28 U.S.C. § 2465(b) (“Section 2465(b)”). We will affirm.
I.
Because we write solely for the parties’ benefit, we set forth only those facts necessary to our analysis.
In June 2002, the Government seized more than three dozen bank accounts at Merchants Bank (now Valley National Bank) containing more than $21 million. The funds were seized in connection with the arrest of Maria Carolina Nolasco, a bank employee, on tax evasion and other charges. Two years later, Nolasco pled guilty to one count of operating a money transmitting business without a license, in violation of 18 U.S.C. § 1960, and four counts of filing false tax returns, in violation of 26 U.S.C. § 7201.
In December 2004, the Government commenced criminal in persmam forfeiture proceedings against Nolasco pursuant to 18 U.S.C. § 982(a) and Federal Rule of Criminal Procedure 32.2, and the District Court filed a preliminary order of forfeiture. Twenty-four claimants, including appellants, then filed petitions under 21 U.S.C. § 853(n) (“Section 853(n)”) asserting title superior to Nolasco in the funds.1
In June 2006, the District Court granted the Section 853(n) claimants’ motion for summary judgment and amended the preliminary order of forfeiture. In so doing, the Court found appellants’ interests superior to Nolasco’s because the Government offered no evidence that Nolasco held any right, title, or interest in the property. *678According to the Court, “the Government [sought] to transform this criminal forfeiture proceeding into a tool for investigation of Brazilian crime and international financial wrongdoing. Were this Court to comply, it would far exceed the bounds of the role assigned to it by the criminal forfeiture statutes.” (A70.)2
Based on the order granting summary judgment, appellants sought attorneys’ fees, costs, and interest under Section 2465(b) as claimants who “substantially prevailed]” in a “civil proceeding to forfeit property.” In the alternative, appellants sought an award of interest from the United States. The District Court rejected those requests.
We have jurisdiction to review the final order of the District Court pursuant to 28 U.S.C. § 1291.
II.
A.
Our review of legal questions, including questions of statutory interpretation, is plenary. United States v. Dees, 467 F.3d 847, 851 (3d Cir.2006), cert. denied, 552 U.S. 830, 128 S.Ct. 52, 169 L.Ed.2d 45 (2007). When interpreting a statute, “we need to ‘discern legislative intent,’ considering first the plain meaning of the statutory text.... The plain meaning of the text should be conclusive, except in the rare instance when the court determines that the plain meaning is ambiguous.” Lawrence v. City of Phila., 527 F.3d 299, 316-17 (3d Cir.) (internal citations omitted), cert. denied, — U.S. -, 129 S.Ct. 763, 172 L.Ed.2d 755 (2008).
B.
In analyzing whether appellants are entitled to attorneys’ fees, costs, and interest under Section 2465(b), we will first place the underlying Section 853(n) proceedings in context. We will then address the elements of a claim under Section 2465(b) and analyze those elements in the context of an underlying Section 853(n) proceeding.
i.
When an in personam criminal forfeiture prosecution is initiated, a third party is barred from intervening in the criminal case and from commencing an action against the United States concerning the validity of an alleged property interest. 21 U.S.C. § 853(k). A third party’s property interest, however, may be vindicated by means of Section 853(n). Therefore, following a finding of forfeitability and the entry of a preliminary order of forfeiture, a third party may assert an interest in forfeited property by petitioning the court for an ancillary proceeding in which to adjudicate the validity of that property interest. 21 U.S.C. § 853(n)(2). That proceeding “is the only avenue by which a third-party claimant may seek to assert an interest in property that has been included in an indictment.” United States v. Puig, 419 F.3d 700, 703 (8th Cir.2005).
To prevail at a Section 853(n) ancillary proceeding, a claimant must demonstrate a vested legal right, title, or interest in the property superior to the defendant’s or that the claimant is a bona fide purchaser for value of the property interest. 21 U.S.C. § 853(n)(6)(A)-(B). In short, where “a third party’s interest in the for*679feited property, at the time of the criminal acts, [is] superior to the criminal defendant’s interest, then the interest that the government acquires when it steps into the defendant’s shoes is subordinate to that of the third party.” United States v. Lavin, 942 F.2d 177, 185 (3d Cir.1991).
Should a claimant demonstrate a property interest superior to the defendant’s, the court will amend the order of forfeiture accordingly, 21 U.S.C. § 853(n)(6), and, on disposition of all petitions filed under Section 853(n), may enter a final order of forfeiture, see 21 U.S.C. § 853(n)(7).
ii.
Enacted as part of the Civil Asset Forfeiture Reform Act (“CAERA”), Section 2465(b) provides that a claimant who “substantially prevails” in “any civil proceeding to forfeit property under any provision of Federal law” may recover from the United States reasonable attorneys’ fees, costs, post-judgment interest, and, in some instances, actual or imputed pre-judgment interest. 28 U.S.C. § 2465(b)(1)(A)-(C).
Thus, for a third-party Section 853(n) claimant to recover attorneys’ fees, costs, and interest under Section 2465(b), the claimant must establish that he or she: (1) substantially prevailed; (2) in a civil proceeding; (3) to forfeit property. If one of those elements is not satisfied, a claimant is not entitled to the benefits of Section 2465(b).
a.
In United States v. Lavin, in determining the timeliness of an appeal, we stated “that a proceeding under 21 U.S.C. § 853(n) ... is a ‘civil case’ for purposes of [Federal Rule of Appellate Procedure 4(a)(1) ].” 942 F.2d at 182. We relied on the principle that civil cases are, broadly, any actions that are not criminal prosecutions. Id. at 181 (citing 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice para 204.08[1], at 4-29 (2d ed.1991)). We further noted that proceedings related to criminal prosecutions, such as habeas corpus petitions and actions dealing with bail bonds, are civil in nature, despite their relationship to a prosecution. Section 853(n) ancillary proceedings are not part of the criminal prosecution. See Fed. R.Crim.P. 32.2(c)(4).
Lavin is consistent with the great weight of authority. See United States v. Pease, 331 F.3d 809, 816 (11th Cir.2003) (finding that Section 853(n) ancillary proceedings are civil); United States v. Gilbert, 244 F.3d 888, 906-08 (11th Cir.2001) (finding Section 853(n) civil for purposes of appellate jurisdiction); United States v. Alcaraz-Garcia, 79 F.3d 769, 772 n. 4 (9th Cir.1996) (following Lavin approach to timeliness of appeal); United States v. Douglas, 55 F.3d 584, 585 (11th Cir.1995) (holding that Section 853(n) proceeding is civil action under Equal Access to Justice Act); see also David B. Smith, Prosecution and Defense of Forfeiture Cases § 14.08[2][c], at 14-117 (2009 ed.) (“[T]he ancillary hearing procedure is civil in nature.”).3
Therefore, because a Section 853(n) proceeding is separate and distinct from the prosecution itself, Section 853(n) ancillary proceedings are “civil” proceedings for purposes of Section 2465(b).
b.
The Government contends that Section 853(n) ancillary proceedings are not proceedings “to forfeit property,” but *680rather are proceedings to quiet title and, accordingly, are not subject to Section 2465(b). We agree.
Other courts have analogized Section 853(n) proceedings to “quiet title” proceedings. For example, in deciding that a Section 853(n) third-party claimant did not have a right to a jury trial, the Fourth Circuit concluded that Section 853(n) proceedings are “most analogous to an equitable petition to quiet title.” United States v. McHan, 345 F.3d 262, 275 (4th Cir.2003). According to the court, “[l]ike a § 853(n) proceeding, the purpose of a quiet title action is ‘to determine which named party has superior claim to a certain piece of property.’ ” Id. (quoting Cadorette v. United States, 988 F.2d 215, 223 (1st Cir.1993)). Although the court acknowledged differences between the proceedings, because “the relief offered to a complainant in a quiet title action is substantially the same relief offered to a § 853(n) petitioner,” it concluded that the claimant was not entitled to a jury trial. Id.; cf. Gilbert, 244 F.3d at 911 & n. 47 (observing that ancillary hearing to litigate third party’s property rights under analogous RICO statute “is essentially a quiet title proceeding”). Stated somewhat differently, a Section 853(n) proceeding cannot result in the forfeiture of a claimant’s property. Rather, the Section 853(n) proceeding merely ensures that property belonging to a third-party claimant is not inadvertently forfeited as part of a criminal defendant’s property.
Ownership is the only relevant issue in a Section 853(n) ancillary proceeding. See, e.g. United States v. Soreide, 461 F.3d 1351, 1354 (11th Cir.2006) (“Unlike the civil forfeiture statutes, the criminal forfeiture statutes contain no provision for an ‘innocent owner’ defense for third parties.”). Forfeitability has already been proven, and proof of ownership in a Section 853(n) proceeding is a complete defense. United States v. Andrews, 530 F.3d 1232, 1236-37 (10th Cir.2008) (“[A] third party has no right to challenge the preliminary order’s finding of forfeitability; rather the third party is given an opportunity during the ancillary proceeding to assert any ownership interest that would require amendment of the order.”). That difference demonstrates that Section 853(n) ancillary proceedings exclude property from forfeiture and do not “forfeit property” as required by Section 2465(b).
Appellants contend that viewing Section 853(n) ancillary proceedings as quiet title proceedings is too narrow. That argument misses the mark. If a Section 853(n) proceeding is viewed broadly as a proceeding “to forfeit property,” then it should be viewed in context, i.e. it should be viewed as part and parcel of the larger criminal forfeiture proceeding. Indeed, before noting that the Federal Rules of Civil Procedure would apply in many respects to Section 853(n) proceedings, the Advisory Committee declined to adopt the Civil Rules in full “[bjecause an ancillary hearing is connected to a criminal case.” Fed.R.Crim.P. 32.2, Advisory Committee Notes on 2000 Amendment (emphasis added). Therefore, although civil in nature, because a Section 853(n) proceeding remains under the larger criminal forfeiture umbrella, application of Section 2465(b) would frustrate Congress’ intent to reform civil forfeiture proceedings. See, e.g., H.R.Rep. No. 106-192, available at 1999 WL 406892, at *2 (noting that CAFRA “would create general rules relating to federal civil forfeiture proceedings designed to increase the due process safeguards for property owners whose property has been seized”).
Our holding is consistent with United States v. Huynh, 334 Fed.Appx. 636 (5th Cir.2009) (unpublished), cert. denied, - U.S.-, 130 S.Ct. 473, 175 L.Ed.2d 309 (2009), which addressed an analogous is*681sue. There, plaintiffs, who, pursuant to a proceeding under 18 U.S.C. § 983(e), set aside the forfeiture of property, sought attorneys’ fees as substantially prevailing parties under CAFRA. According to the court, however, Section 2465(b) “applies only to civil proceedings ‘to forfeit property,’ that is, civil forfeiture actions initiated by the Government.” Id. at 638. Because “[plaintiffs’ claim ... [sought] to set aside a forfeiture that ha[d] already occurred,” the court declined to award attorneys’ fees. Id.4
Similarly, because a Section 853(n) ancillary proceeding is not a proceeding “to forfeit property,” appellants are not entitled to attorneys’ fees, costs, or interest pursuant to Section 2465(b).5
Our holding also comports with the Eighth Circuit’s reasoning in United States v. Moser, the only court of appeals to address this issue. 586 F.3d 1089 (8th Cir.2009) (holding that successful claimant in Section 853(n) ancillary proceeding may not recover attorneys’ fees under Section 2465(b), in part due to government’s persuasive argument that Section 853(n) proceeding is akin to quiet title action).
C.
Finally, we address whether appellants are entitled to an award of interest from the United States.
In Library of Congress v. Shaw, the Supreme Court enumerated the “no-interest rule,” holding that “[i]n the absence of express congressional consent to the award of interest separate from a general waiver of immunity to suit, the United States is immune from an interest award.” 478 U.S. 310, 314, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986); accord Larson v. United States, 274 F.3d 643, 647-48 (1st Cir.2001); United States v. $30,0006.25 in U.S. Currency, 236 F.3d 610, 613-14 (10th Cir.2000); United States v. $7,990.00 in U.S. Currency, 170 F.3d 843, 844-45 (8th Cir.1999); Ikelionwu v. United States, 150 F.3d 233, 239 (2d Cir.1998).
In the context of seized funds, however, the Sixth, Ninth, and Eleventh Circuits permit claims of interest to proceed against the United States. See, e.g., United States v. 1461 W. 42nd St., 251 F.3d 1329, 1338 (11th Cir.2001); United States v. $515,06042 in U.S. Currency, 152 F.3d 491, 504 (6th Cir.1998). The leading minority case is United States v. $277,000 U.S. Currency, 69 F.3d 1491 (9th Cir.1995). There, the court found that because the interest on seized funds “bec[a]me part of the res,” it should “be returned with the res to the claimant.” Id. at 1496. According to the court, that result did not require the United States “to pay for damage it has done,” but rather to “disgorge benefits that it has actually and ealculably received from an asset that it has been holding improperly.” Id. at 1498; see also id. at 1494 (observing that “in any normal commercial dispute over property, the disputed property would, as soon as practical, be placed in an escrow account to earn interest that would go to whoever was the ultimate winner”). A later Ninth Circuit opinion, Carvajal v. United States, observed that the minority view was consistent with Congress’ intent in passing *682CAFRA, a statute that “ratified the outcome, if not the rationale” of the minority perspective. 521 F.3d 1242, 1248-49 (9th Cir.2008) (quotation omitted).
The minority view, however, is at odds with Shaw. First, Shaw explicitly noted that “the force of the no-interest rule cannot be avoided simply by devising a new name for an old institution.” 478 U.S. at 319, 106 S.Ct. 2957. Thus, whether labeled as damages, loss, earned increment, just compensation, discount, offset, penalty or any other term, the no-interest rule remains applicable. In other words, interest by any other name is still interest.
Second, Shaw left no doubt that “[cjourts lack the power to award interest against the United States on the basis of what they think is or is not sound policy.” 478 U.S. at 321, 106 S.Ct. 2957; see also Larson, 274 F.3d at 647 (“[N]either fairness considerations nor rules applicable to private disputes can alone provide grounds for abrogating sovereign immunity.”). Thus, the minority view expressed in $277, 000 in U.S. Currency (finding private transactions instructive) and Carvajal (relying on CAFRA’s legislative history) is in conflict with Shaw.
We choose to follow the majority approach and hew to the letter of Shaw by holding that, in the absence of express congressional consent to the contrary, the United States is immune from an award of interest. Appellants point to no governing statute entitling them to interest. Therefore, appellants may not recover interest against the United States.
III.
For the reasons stated above, we will affirm the order of the District Court.
. Two of the twenty-four petitions were dismissed.
. The funds became the subject of a torturous procedural labyrinth involving the Manhattan District Attorney's Office, New York state courts, the United States District Court for the District of Columbia, Brazilian courts, and a Mutual Legal Assistance Treaty. Those proceedings, however, are not germane to this appeal. Suffice it to say that the funds have either been forfeited by appellants or are in the custody of the U.S. Department of Justice.
. But see United States v. Yerardi, 192 F.3d 14, 19 (1st Cir.1999) (ancillary proceeding is criminal in nature for purposes of adverse spousal testimony privilege); United States v. Gardiner, 512 F.Supp.2d 1270, 1272 (S.D.Fla.2007) (finding Section 853(n) proceeding criminal and, thereby, not covered by Section 2465(b)'s fee-shifting provision).
. The only court to find Section 853(n) claimants eligible for attorneys' fees pursuant to Section 2465(b) is the Eastern District of Virginia in United States v. D'Esclavelles, 541 F.Supp.2d 794 (E.D.Va.2008). That case, however, was reversed on other grounds. United States v. Buk, 314 Fed.Appx. 565 (4th Cir.2009). The Fourth Circuit did not address the issue.
. Because we hold that Section 853(n) proceedings are not proceedings "to forfeit property” and therefore not subject to CAFRA's attorneys' fee provisions, we need not address whether appellants substantially prevailed.
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01-04-2023
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11-05-2022
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OPINION
BARRY, Circuit Judge.
This case arises out of a dispute over the terms of an oral agreement between LG International (America), Inc. (“LGIA”) and Intercon Enterprises, Inc. (“Intercon”), whereby LGIA, a fiber optic cable importer, agreed to pay sales commissions to Intercon. Three years into the agreement, Intercon was not satisfied with the amount of the commissions it had received, and brought a breach of contract claim1 against LGIA in the District Court. After a trial, a jury returned a verdict for Inter-con and awarded $805,009.25 in damages.2 LGIA raises two issues on appeal, both related to the jury instructions: that the Court erred (1) in refusing to include in the breach of contract instruction a statement that a “party seeking sales commissions, pursuant to an oral contract, [must] establish that it was the ‘efficient producing cause’ of the sale,” and (2) in giving a good faith and fair dealing instruction, because neither party pleaded anything about good faith and fair dealing, and erred, in any event, by misstating the language of the instruction. We will affirm.
*684
I. Factual Background, and Procedural History
In 1999, Intercon’s owner, Kwan Kim, contacted Kevin Shon, then a salesperson at LGIA, about importing South Korean fiber optic cable for a cable television company where Mr. Kim had a contact. In early 2000, Intercon and LGIA entered into the oral sales commission agreement referenced above (the “Contract”) whereby Mr. Kim agreed to introduce LGIA to additional potential customers. Soon thereafter, LGIA began receiving orders for fiber optic cable.
During the next three years, LGIA made significant sales of fiber optic cable, including the sales at issue in this case to two cable television companies. LGIA sold nearly $25 million in fiber optic cable to Adelphia Communications Company (“Adelphia”) and nearly $25 million to Comcast Corporation (“Comcast”). For these sales, Intercon believes it was entitled to commissions of two percent of the sales volume, for a total of $499,000 and $497,000 for sales to Adelphia and Com-cast, respectively. LGIA sees it differently, and, until this litigation, had paid no commissions to Intercon for the Adelphia sales and only $192,000 for the Comcast sales.
At trial, neither party disputed the existence of the Contract, but two of its terms were hotly contested. As the District Court instructed the jury,
Intercon claims that when it brought the idea of selling cable in the United States to LGIA, it expressly required LGIA to agree that Intercon would be the exclusive sales agent for all sales LGIA made to ... Comcast and Adelphia. Thus, Intercon alleges that as a result of introducing this business opportunity to LGIA, LGIA agreed to pay it a 2 percent commission on all Comcast and Adelphia sales, regardless of Intercon’s involvement in the processing of orders from these companies.
(A. at 467.) By contrast, LGIA claimed that it “had an agreement with Intercon pursuant to which [LGIA] would pay a sales commission on all sales of fiberoptic cable procured by Intercon [and] that In-tercon was required to produce a customer who was ready, willing and able to perform.” (Id.) The other somewhat heated issue concerned the amount of the commission percentage.
With respect to the sales made to Adelp-hia, LGIA’s position was that Intercon “did almost nothing,” (A. at 440), and that LGIA had to “take up the task of trying to bring in Adelphia business” itself (A. at 441.) LGIA presented evidence at trial that Intercon had not earned any commission for the Adelphia sales because Inter-con had not procured the Adelphia sales; that, in fact, LGIA had hired a second broker to facilitate those sales.
In its closing argument, Intercon argued, in essence, that LGIA’s hiring of a second broker for the Adelphia account did not excuse LGIA’s contractual duty to pay Intercon commissions for LGIA’s sales to Adelphia. Intercon asked the court for an instruction on the implied covenant of good faith and fair dealing to complement Inter-con’s convoluted argument to the jury that the implied covenant of good faith and fair dealing prevented LGIA from using its decision to hire a second broker as an excuse for not paying the Adelphia commission to Intercon. The District Court gave the following instruction:
Good faith and fair dealing. The law implies a requirement that each party to a contract must act in good faith and deal fairly with the other party in performing or enforcing the terms of the contract. This implied agreement is part of the contract just as the contract expressly states this good faith and fair *685dealing requirement. To act in good faith and deal fairly, the parties must act honestly towards each other when informing or enforcing the contract. The parties shall not do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.
In this case, LGIA asserts that one of the reasons Intercon is not entitled to a commission on its sales to Adelphia is because it used another agent relating to its Adelphia sales. In response, Inter-con claims that under the duty of good faith and fair dealing that I have just explained, LGIA was not permitted to take any action to destroy Intercon’s ... claims that LGIA was not permitted under the parties’ contract to hire another agent, and that its decision to do so for its Adelphia sales does not excuse LGIA’s obligation under the contract to pay Intercon the 2 percent commission on all Adelphia sales.
(A. at 469.)
As to breach of contract, the District Court instructed the jury that it could “only render a verdict in favor of Intercon if [it] determine[d] that it proved it is entitled to compensation from LGIA pursuant to the specific terms of its agreement with LGIA.” (A. at 466-67.)
II. Jurisdiction and Standard of Reuieiu
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.
The parties dispute whether LGIA made timely objections to the jury instructions and what standard applies on appeal. We exercise plenary review only to ensure that jury instructions do not misstate a legal standard, Abrams v. Lightolier Inc., 50 F.3d 1204, 1212 (3d Cir.1995), and we review the District Court’s decision to use particular language in the instructions themselves for abuse of discretion, Cooper Dist. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir.1999). If the party claiming error did not make a timely objection, we review for plain error. Id. Fed.R.Civ.P. 51 provides that a party may not assign as error defects in jury instructions unless the party distinctly stated its objection before the jury retired to consider its verdict. See Fed.R.Civ.P. 51; accord Smith v. Borough of Wilkinsburg, 147 F.3d 272, 277 (3d Cir.1998) (“[T]o preserve an issue for appeal, counsel must state distinctly the matter objected to and the grounds of the objection.”).
With respect to the efficient producing cause issue, just as in Cooper, the parties reached agreement during the charge conference on the language of the instruction. LGIA did not object at the close of jury instructions. When the District Court solicited objections immediately after in-sti’ucting the jury, LGIA’s lawyer responded by saying, “[n]o exceptions Your Honor.” (A. at 477.)
LGIA argues that objecting after the instructions would have been futile since it had already raised the issue in its pre-trial briefing.3 However, LGIA’s prior mention of the issue did not excuse the requirement of a timely objection. See Cooper, 180 F.3d at 550 (rejecting appellant’s argument that appellant had already raised the issue in its proposed jury instructions and at the charge conference, because “immediately after giving its instructions, the District Court expressly invited any objections by the parties”).
With respect to the good faith and fair dealing issue, LGIA argues that it did not *686have adequate time to object since the issue was raised for the first time at the charge conference,4 where LGIA claims “it certainly objected.” Again, this argument does not change the critical point of the Cooper analysis — that counsel was given the opportunity to object and declined to do so.
Because LGIA failed to make a timely objection to either of the issues it raises on appeal, we review both issues for plain error.
III. Analysis
A. Effective Producing Cause
LGIA argues that the District Court erred by not instructing the jury that Intercon was required to prove that it was the “effective producing cause” of a sale before it could become entitled to commissions. According to LGIA, “[i]t is well-established that under applicable New Jersey law, when there is an oral contract for commissions, a broker ‘must establish that he was the ‘efficient producing cause’ in bringing about the sale.’ ” (LGIA Br. at 22 (quoting Inventive Music Ltd. v. Cohen, 617 F.2d 29, 32 (3d Cir.1980)5)) This is not a correct statement of New Jersey law,6 and none of the cases LGIA cites stands for LGIA’s proffered proposition.7
Instead, as we held in Vanguard, New Jersey law applies the “efficient producing cause” presumption when a contract is found to be “silent as to the service required to earn a commission.” Vanguard, 900 F.2d at 651. In Vanguard, we explained that “the parties had agreed carefully to delineate their obligations to each other, [and] reading the agreement as a whole there is not the slightest hint that Vanguard would be due commission on sales or leases regardless of any participation by it in the transaction.” Id. at 652. Here, under either party’s formulation, the Contract was not silent as to the service required to earn a commission.8
The District Court’s instructions eliminated the possibility that the jury would find in favor of Intercon while also finding that the Contract was “silent as to the service required to earn a commission.” *687The instruction provided that “[y]ou can only render a verdict in favor of Intercon if you determine that it proved it is entitled to compensation from LGIA pursuant to the specific terms of’ the Contract.9 (A. at 466) (emphasis supplied). This language made the Vanguard presumption superfluous, given that the jury was limited to rendering a verdict for Intercon only if the Contract was not silent as to the services required to earn a commission. Indeed, we agree with the Court that the instruction LGIA proffered would have added to, rather than subtracted from, the potential for jury confusion.
LGIA makes much of the adjectives we used in Vanguard to describe the level of specificity required to overcome the efficient producing cause presumption,10 i.e., the language needed for a commission contract not to be “silent as to the service required to earn a commission,” and argues that there is no way to know whether the jury made such a finding. But the context of Vanguard makes clear that a contract overcomes the presumption if it specifically identifies what service is required to earn a commission. The New Jersey cases we cited in Vanguard for the specificity language — Stevenson Co. v. Oppenheimer, 91 N.J.L. 479, 104 A. 88 (Sup.1918), Ettinger v. Loux, 96 N.J.L. 522, 115 A. 384 (1921), and Martin Realty Co. v. Fletcher, 103 N.J.L. 294, 136 A. 498 (Sup.1927) — require nothing more than what the jury instructions in this ease required: a finding that Intercon was “entitled to compensation from LGIA pursuant to the specific terms of’ the Contract. (A. at 466) (emphasis added).
Moreover, the jury was never confronted even with the possibility that the Contract was silent as to this issue. The evidence, the arguments and the jury instructions all described the Contract as one containing a term addressing what was required to earn a commission. Neither of the parties argued (to the jury) that Inter-con was entitled to commissions that it had not earned under the Contract. In fact, despite Intercon’s inexplicable statements to the contrary in its brief to this Court, the jury was never confronted with a contract which was “silent as to the services required to earn a commission.” Vanguard, 900 F.2d at 651.
Even if the jury could have found that the Contract was silent as to the services required to earn a commission, however, the Vanguard presumption likely does not apply to oral contracts. As we explained in Vanguard, “the presumption is based on public policy intended to effectuate justice between the parties and is not intended to rewrite an agreement which the parties deliberately executed.” Id. The presumption allows courts to construe the express terms of a written contract without resorting to extrinsic evidence, with its many pitfalls, e.g., credibility. See Federal Marine Terminals, Inc. v. Worcester Peat Co., Inc., 262 F.3d 22, 28 (1st Cir.2001) (“[T]he effect of admitting extrinsic evidence would be to allow one party to substitute his view of his obligations for those clearly stated.”). In the case of an oral contract, as we explained in Vanguard, “we will be unable to construe it until we can determine what are its terms ... *688[which] is best left to a full trial and determination by the jury.” 900 F.2d at 650. Because the jury is already charged with probing the parties’ intentions and witnesses’ credibility in order to cobble together the terms of the oral contract, the Vanguard presumption would appear to serve no purpose.
We will not rewrite a contract or make a contract better for either party, see Vanguard, 900 F.2d at 651, and a Vanguard instruction would have interfered with the jury’s fair construction of the Contract. The decision not to give the instruction was not error, much less error so “fundamental and highly prejudicial” as to “result in a miscarriage of justice.” Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 136 (3d Cir.1997).
B. Good Faith and Fair Dealing
According the jury instructions, “LGIA asserts that one of the reasons Intercon is not entitled to a commission on its sales to Adelphia is because [LGIA] used another agent relating to its Adelphia sales.” (A. at 469.) Intercon argued that LGIA’s decision to hire a second agent did not excuse LGIA’s obligation to pay Inter-con a commission. The District Court, apparently intending to provide some legal underpinning for Intercon’s excuse argument, somewhat inexplicably agreed to employ language (and an instruction) outlining the covenant of good faith and fair dealing. Rather than giving what should probably have been a simple instruction about excuse, the Court gave a brief overview of good faith and fair dealing and the honesty requirement inherent in all contracts, and noted Intercon’s argument that “LGIA was not permitted to take any action to destroy Intercon’s rights under the parties’ contract.” (A. at 469.)
The District Court’s instruction provided a cleat' articulation of the appropriate legal standard: that it was up to the jury to determine whether hiring another agent excused LGIA from paying Intercon’s commissions. This instruction was surely not an error so plain that it “failed to provide the jury with adequate guidance and our refusal to consider the issue would result in a miscarriage of justice.” Ryder, 128 F.3d at 136.
Even if we were not on plain error review, a jury instruction constitutes reversible error only if it fails to “fairly and adequately” present the issues in the case without confusing or misleading the jury. Donlin v. Philips Lighting North America Corp., 581 F.3d 73, 79 (3d Cir.2009). Here, if the good faith and fair dealing language was incorrect, it arguably misstated a rule of law, and the instruction is subject to plenary review. Mosley v. Wilson, 102 F.3d 85, 94 (3d Cir.1996) (citations omitted). Even so, we would reverse only “if, looking at the charge as a whole, the instructions were capable of confusing and thereby misleading the jury.” Id. Here, the instructions as a whole are abundantly clear that the case was one about breach of contract and that liability could only attach if the juiy found that LGIA had breached its contractual promises to Intercon.
IV. Conclusion
We will affirm the order of the District Court.
. The complaint also included a cause of action for quantum meruit, which the District Court dismissed in its order partially granting LGIA's motion for summary judgment.
. LGIA misstates the amount of the verdict as $1,085,302.06, (LGIA Br. at 5), which is actually the amount of the final judgment, including pre-judgment interest. (A. at 1.)
. LGIA's argument that "any further objection by LGIA would have been rude to the Trial Court," (LGIA Reply Br. at 5), is somewhat belied by the fact that LGIA did indeed raise the issue again in its post-trial motions.
. LGIA’s briefing is self-contradictory. Its opening brief claims that the issue was first raised at the charge conference. (LGIA Br. at 4). Its reply brief states that "Intercon first asked the Trial Court to include a breach of good faith and fair dealing charge at the start of the trial.” (LGIA Reply Br. at 5). It appears, however, that the matter first came up at the charge conference when LGIA’s counsel said that the instruction would “be unfair” because "[w]e didn't have notice that there was going to be an argument ... that there was some breach of this implied covenant.” (App. at 415-16).
. In Inventive Music, unlike the case before us, the broker’s agreement was silent as to what was required to earn the commission. Further, Inventive Music was about a finder’s fee, rather than a sales commission, and it is not clear that New Jersey law treats the two categories as substantively analogous.
. The District Court applied New Jersey law, as do we. It is undisputed that New Jersey substantive law applies.
. Indeed, we admonished the parties in Vanguard Telecomm. v. S. New England Tel. Co., 900 F.2d 645, 651 (3d Cir.1990) for “inexplicably arguing oral contract theory” when the agreement in dispute was a written contract. Inventive Music involved an oral finder’s fee agreement which was silent as to the service required to earn a commission. In Arzoomanian v. British Telecomm., PLC, 2007 WL 132983 (D.N.J. Jan. 12, 2007), there was no contract at all, let alone a contract which spoke to the issue of what service was required to earn a commission.
. The District Court addressed this issue during the charge conference, explaining that the instruction was unnecessary (apparently as a logical matter) because LGIA already was arguing that Intercon was only entitled to commissions for those sales it procured.
. We presume “that juries follow instructions given by the District Court.” United States v. Hakim, 344 F.3d 324, 326 (3d Cir.2003).
. For example, in order ”[t]o overcome this presumption, an agreement must contain language which explicitly negatives the presumption. The contract language presented must be without qualification, and ... emphatic and specific in statement” and ”[a]bsent language which specifically abrogates the common law presumption, that presumption prevails; commissions will only be awarded to a broker who was the efficient cause of the sale.” Id. at 651.
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11-05-2022
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OPINION OF THE COURT
FISHER, Circuit Judge.
International Steel Services, Inc. (“ISSI”) appeals from an order of the District Court entering judgment against ISSI in favor of Steel Corporation of the Philippines (“SCP”) and an order denying ISSI’s motion for relief pursuant to Federal Rule of Civil Procedure 60(b). We -will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
ISSI, a Delaware corporation headquartered in Pittsburgh, Pennsylvania, and SCP, a Philippine corporation, entered into two separate contracts relevant to this litigation. Under the Acid Regeneration Plant Supply and Installation Agreement (“ARP Contract”), entered into on April 1, 1996, ISSI agreed to construct an acid regeneration plant for SCP. Under the Iron Oxide Sales Agreement (“IOSA Contract”), entered into on April 15, 1997, ISSI agreed to purchase the iron oxide byproduct of the plant. Both contracts contained the following arbitration provision:
“The validity, performance and enforcement of this Contract shall be governed by Philippine Laws. The parties agree that any dispute or claim arising out of this Contract shall be s[e]ttled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The proceedings on arbitration shall be conducted in Singapore. The arbitral award shall be final and binding on both parties.”
(App. at A-57.) Separate disputes arose under each contract.
On September 18, 2002, ISSI commenced a claim against SCP under the ARP Contract before the Construction Industry Arbitration Commission of the Philippines. The Commission issued an award of $150,000 in ISSI’s favor against SCP (“ISSI Award”) on August 20, 2003.
On May 5, 2003, SCP instituted a separate claim against ISSI under the IOSA Contract in the International Chamber of Commerce International Court of Arbitration in Singapore. On November 3, 2004, the arbitrator issued a final award of $647,965.50 in SCP’s favor against ISSI (“SCP Award”). The SCP Award contained the following provision:
“The applicable law of the arbitration proceedings is the Singapore International Arbitration Act. The validity, performance and enforcement of ... the [IOSA Contract is] governed by the laws of the Philippines.”
(App. at A-67.) ISSI has not petitioned for judicial review of this award in Singapore.
On August 19, 2004, ISSI filed a petition in the Philippines Regional Trial Court to vacate the SCP Award. Due to an alleged error in service that prevented SCP from receiving an order, on January 4, 2006, the Regional Trial Court declared SCP in default of ISSI’s petition to vacate, thereby allowing ISSI to present ex-parte evi*691dence. In response, SCP filed an Urgent Motion for Reconsideration. There is no evidence that the Regional Trial Court ever ruled on this Motion. Instead, a Notice of Pre-Trial indicates that the parties were to attend a pre-trial conference on April 18, 2007. (Addendum Exhibit A.) In an order of that same date, the Regional Trial Court referred the matter to mediation and stayed further proceedings. (Addendum Exhibit B.) The mediation failed.
Meanwhile, on September 13, 2005, ISSI moved to execute the ISSI Award in the Philippines. On July 17, 2007, the Philippine Court of Appeals, in an appeal by SCP, set aside the Award on the basis that ISSI was obligated to pay SCP the greater sum of $647,965.50 under the SCP Award. The Court of Appeals also noted that the Philippine Regional Trial Court, over which the Court has appellate jurisdiction, did not have jurisdiction to set aside the SCP Award. (App. at A-656.)
On January 19, 2006, SCP filed a Petition to Confirm the SCP Award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10,1958 (“New York Convention”), in the Court of Common Pleas of York County, Pennsylvania. Ultimately, the case was removed to federal court and transferred to the Western District of Pennsylvania. ISSI filed a motion for judgment on the pleadings, which the District Court denied on July 31, 2006.1 On July 31, 2007, after a discovery phase, the parties filed cross motions for summary judgment.
On February 6, 2008, the District Court denied ISSI’s motion for summary judgment, granted SCP’s motion for summary judgment, and entered judgment in SCP’s favor in the amount of $647,965.50.2 ISSI filed a motion for relief pursuant to Federal Rule of Civil Procedure 60(b) to reduce the judgment in the amount of $150,000 by offsetting the SCP Award by the amount of the ISSI Award. The District Court denied the motion on April 23, 2008. ISSI filed a timely appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 1294. “The District Court’s grant of summary judgment and judgment on the pleadings is subject to plenary review.” E.I. DuPont de Nemours & Co. v. United States, 508 F.3d 126, 131 (3d Cir.2007). This Court will “construe all facts and inferences in the light most favorable to the non-moving party, and ‘[jjudgment will not be granted unless the movant clearly establishes there are no material issues of fact, and he is entitled to judgment as a matter of law.’” Id. (citations omitted). Likewise, “[w]e review de novo the District Court’s interpretation of the [New York] Convention.” Admart AG v. Stephen & Mary Birch Foundation, Inc., 457 F.3d 302, 307 (3d Cir.2006). Finally, “[w]e review grants or denials of relief under Rule 60(b) ... under an abuse of discretion standard.” Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008).
III.
ISSI sets forth three arguments on appeal. First and foremost, ISSI contends that the District Court erred in holding that ISSI does not have a valid defense under either Articles V(l)(e) or V(2)(b) of the New York Convention, and thus that the Court erred in enforcing the SCP Award. In the alternative, ISSI argues that the District Court erred in refusing to offset the SCP Award by the smaller ISSI Award pursuant to Federal Rule of Civil *692Procedure 60(b)(5). We mil address each contention in turn.
A.
ISSI argues that under Article V(l)(e) of the New York Convention, the Philippine Regional Trial Court’s entry of default against SCP on ISSI’s petition to vacate the SCP Award precludes a United States court from enforcing the Award. The applicable language of Article V(l)(e) provides as follows:
“1. Recognition and enforcement of the award may be refused ... only if ...
(e) The award ... has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.”
Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. V(1), June 10, 1958, T.I.A.S. No. 6997, 21 U.S.T. 2517. To prevail, ISSI must demonstrate that the Philippines is a country with primary jurisdiction by showing that the Philippines is a country “under the law of which”3 the SCP Award was made.4 ISSI is unable to do so.
The Sixth Circuit held in M & C Corp. v. Erwin Behr GmbH & Co., KG that the Article V(l)(e) language “under the law of which” “ ‘refers exclusively to procedural and not substantive law, and more precisely, to the regimen or scheme of arbitral procedural law under which the arbitration was conducted.’ ” 87 F.3d 844, 848 (6th Cir.1996) (emphasis added) (quoting International Standard Electric Corp. v. Bridas Sociedad Anonima Petrolera, Industrial Y Comercial, 745 F.Supp. 172, 178 (S.D.N.Y.1990)); see also Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 290 (5th Cir.2004) (“Under the New York Convention, the rulings of the Tribunal interpreting the parties’ contract are entitled to deference.”). Since the SCP Award indicates that the arbitrator applied Singapore procedural law — “The applicable law of the arbitration proceedings is the Singapore International Arbitration Act” (App. at A-67) — Singapore, not the Philippines, is the country with primary jurisdiction.
In response, ISSI contends that the relevant question is not what procedural law the arbitrator applied, but what procedural law the parties agreed should be applied. However, even assuming, arguendo, that we look to the parties’ choice of procedural law, and not the law applied by the arbitrator, ISSI’s argument still fails, as ISSI has not demonstrated that the parties agreed in the IOSA Contract to an application of Philippine procedural law.
Although the Third Circuit has not addressed this issue, the Fifth Circuit held in Karaha Bodas Co., L.L.C. that “[ujnder the New York Convention, an agreement specifying the place of the arbitration creates a presumption that the procedural law of that place applies to the arbitration.” 364 F.3d at 291. The Fifth Circuit sensibly explained that any other presumption would be illogical:
“Authorities on international arbitration describe an agreement providing that one country will be the site of the arbitration but the proceedings will be held under the arbitration law of another *693country by terms such as ‘exceptional’; ‘almost unknown’; a ‘purely academic invention’; ‘almost never used in practice’; a possibility ‘more theoretical than real’; and a ‘once-in-a-blue-moon set of circumstances.’ Commentators note that such an agreement would be complex, inconvenient, and inconsistent with the selection of a neutral forum as the arbitral forum.”
Id. at 291 (footnotes omitted). We will apply the same presumption here. Accordingly, ISSI bears the burden of showing that Philippine procedural law, not forum procedural law, applies to the arbitration of the SCP Award.
ISSI’s primary argument in support of Philippine procedural law is that the parties necessarily agreed to an application of that law by stating in the IOSA Contract that “enforcement” of the Contract would be governed by Philippine law.5 This is insufficient. Given the difficulty Singapore would likely have in researching, deciphering, and applying another country’s procedural law, the use of the term “enforcement,” as opposed to the term “procedure,” cannot in and of itself create the “once-in-a-blue-moon set of circumstances” where the forum applies another country’s procedural law. Id. at 291.
The analogous facts of Karaha Bodas Co., L.L.C. support this determination. The litigation in Karaha Bodas Co., L.L.C. arose out of an arbitral award made in Switzerland regarding contracts negotiated and allegedly breached in Indonesia. Id. at 281. Like the instant case, the parties expressly agreed prior to arbitration that Switzerland would be the site of arbitration and that Indonesian substantive law would apply. Id. at 290. Based on these facts, the Fifth Circuit ultimately held that the Swiss tribunal properly applied Swiss procedural law.6 Id. at 293. Similarly, ISSI and SCP expressly agreed to use the substantive law of one country— the Philippines — while designating another country — Singapore—as the forum, but did not expressly agree to a specific country’s procedural law. Therefore, following the Fifth Circuit, we find that ISSI has failed to “rebut the strong presumption that designating the place of the arbitration also designates the law under which the award is made,” id. at 292, and thus that the Singapore International Court of Arbitration properly applied Singapore procedural law.
In summary, the Philippines is not a country with primary jurisdiction over the SCP Award, and the District Court did not err in holding that ISSI has no defense *694under Article V(l)(e) of the New York Convention.7
B.
Similarly, ISSI contends that under Article V(2)(b) of the New York Convention, enforcing the SCP Award would violate the fundamental principles of res judicata and judicial comity and would run contrary to the public policy against forum shopping in the United States. The relevant provision of Article V(2)(b) provides as follows:
“2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.”
Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. V(2), June 10, 1958, T.I.A.S. No. 6997, 21 U.S.T. 2517. ISSI argues that because the validity of the SCP Award was already pending in the Philippines, SCP’s attempt to enforce the Award in the United States was improper. Accordingly, ISSI asks that we defer to the courts of the Philippines and refrain from enforcing the Award.
ISSI’s claim is without merit. To start, we must review Article V public policy defenses narrowly. Admart AG, 457 F.3d at 308 (“courts have strictly applied the Article V defenses and generally view them narrowly”). “Enforcement of foreign arbitral awards may be denied [based on the New York Convention’s public policy defense] only where enforcement would violate the forum state’s most basic notions of morality and justice.” Parsons & Whittemore Overseas Co., Inc. v. Societe Generale de L’Industrie du Papier (RAKTA), 508 F.2d 969, 974 (2d Cir.1974). Here, ISSI’s contentions not only do not violate the public policy of the United States, but they contravene the very purpose of the New York Convention. “The principal purpose for acceding to the [New York] Convention was to ‘encourage the recognition and enforcement of commercial arbitration agreements in international contracts.’ ” Admart AG, 457 F.3d at 307 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)). Accordingly, parties may bring suit to enforce awards notwithstanding the existence of ongoing proceedings elsewhere. See Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi, 335 F.3d 357, 366-67 (5th Cir.2003) (“Under the [New York] Convention, a court maintains the discretion to enforce an arbitral award even when nullification proceedings are occurring in the country where the award was rendered. Furthermore, an American court and courts of other countries have enforced awards, or permitted their enforcement, despite prior annulment in courts of primary jurisdiction.”). See also Yusuf Ahmed Alghanim & Sons v. Toys “R” Us, Inc., 126 F.3d 15, 22 (2d Cir.1997) (“The [New York] Convention ... eradicated] the requirement that a court in the rendering state recognize an award before it could be taken and enforced abroad.”).
Applying the foregoing principles to the instant case, SCP was entitled to bring *695suit to enforce the SCP Award in the United States — where ISSI’s assets are located — even though a motion to vacate the SCP Award was pending in the Philippines. Enforcement of the SCP Award does not violate this country’s “most basic notions of morality and justice.” Parsons & Whittemore Overseas Co., Inc., 508 F.2d at 974. Therefore, the District Court did not err in holding that ISSI does not have an Article V(2)(b) public policy defense against enforcement of the SCP Award in the United States.
C.
Lastly, ISSI challenges the District Court’s denial of its motion to offset the SCP Award by the ISSI Award in the amount of $150,000 pursuant to Federal Rule of Civil Procedure 60(b)(5). Because the parties have since resolved this issue,8 we do not need to address it here.
IV.
For the foregoing reasons, we will affirm the orders of the District Court.
. The District Court also denied reconsideration of the motion on August 28, 2006.
. The District Court denied ISSI's motion for reconsideration on February 21, 2008.
. The SCP Award was made in Singapore; therefore, the Philippines is not a country "in which'' the Award was made.
. Since the Philippine Regional Trial Court never ruled on SCP's Urgent Motion for Reconsideration of the default judgment, but instead ordered mediation, it is questionable whether the SCP Award has indeed been "set aside or suspended.” However, as ISSI is unable to demonstrate that the Philippines is a country with primary jurisdiction, we need not reach this issue.
. ISSI attempts to buttress this argument with two additional points, neither of which has merit. First, ISSI argues that the Rules of Conciliation and Arbitration of the International Chamber of Commerce, and in particular Article 15(1), do not limit parties' choice of law. This argument does not help ISSI meet its burden because there is still insufficient evidence that ISSI and SCP actually chose Philippine procedural law over forum procedural law in the IOSA Contract.
Second, ISSI asserts that the deposition testimony of Abeto Uy, the President and Chairman of SCP, and Manuel Pamaran, SCP's expert witness on the application of Philippine law, indicates that SCP clearly understood that Philippine procedural law was to apply. However, contrary to ISSI's assertion, these depositions demonstrate only that Uy and Pamaran neither knew nor understood which procedural law governed the SCP Award.
. Karaha Bodas Co., L.L.C. was arguably a more difficult case. Unlike the instant facts, the parties' contract in Karaha Bodas Co., L.L.C. referenced certain Indonesian civil procedure rules. Nevertheless, the Fifth Circuit held that the procedural references “fall far short of an express designation of Indonesian procedural law necessary to rebut the strong presumption that designating the place of the arbitration also designates the law under which the award is made.” 364 F.3d at 292.
. Although certainly not dispositive, it is worth noting that the Philippine Court of Appeals has also stated, albeit in dicta, that the Philippine Regional Trial Court did not have jurisdiction to set aside the SCP Award. (App. at A-656.)
. The parties agreed at oral argument to offset the Awards. Their subsequent stipulation provides, "the Philippine arbitration award in favor of ISSI may be offset against and deducted from the Singapore arbitration award and from the judgment entered in this action in favor of SCP.” The agreement calculates the SCP and ISSI Awards, together with interest and costs through October 31, 2009, at $789,427.10 and $281,839.57, respectively. The parties will resolve the continuing calculation of interest after October 31, 2009.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Dennis Patterson appeals from the District Court’s grant of summary judgment on the basis of qualified immunity, contending that the District Court erred hi determining, in reliance on language from Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), that it could not adopt Patterson’s version of the facts for purposes of its ruling. We agree with Patterson and will therefore vacate and remand for further proceedings.1
Patterson instituted a § 1983 civil action against the City of Wildwood and several individuals, including Sgt. Christopher Howard, alleging violations of his Fourth Amendment right to be free from unreasonable seizure. His complaint arose out of an incident that occurred in September 2004 at the Fairview Café in Wildwood, New Jersey, where, he contends, he was illegally arrested and excessive force was used against him during the course of an illegal seizure.
At issue is the District Court’s grant of summary judgment on Patterson’s excessive force claim against Sgt. Howard. As the District Court noted, the facts regarding the events of the evening in question, and the alleged use of force, were “highly disputed.” The District Court accurately summarized the facts as contended by each party:
The parties dispute whether Plaintiff was resisting arrest and whether he was unconscious while on the ground. Plaintiff asserts that when Defendant told him he was under arrest and ordered him to turn around, Plaintiff attempted *697to comply with the order, but Defendant “grabbed [him] by the collar and into the — to the ground [he] went.” (PI. Dep.43:5-6). Plaintiff further claims that when he was slammed to the ground, he hit the ground face first and was momentarily knocked unconscious. Thus, Plaintiff argues, it was unreasonable for Defendant to punch Plaintiff in the face.
Defendant contests Plaintiffs version of the facts and claims that Plaintiff was resisting arrest. Specifically, Defendant asserts that Plaintiff assumed a fighting stance and had to be pulled away from a glass window, which caused both Plaintiff and Defendant to fall to the ground. Defendant further claims that once on the ground, Plaintiff was not unconscious but, rather, continued to resist arrest by flailing his arms about. At that point, Defendant punched Plaintiff in the face one time to subdue him.
(Dist.Ct.Op., pp. 8-9.)
The District Court noted that in the usual case, on summary judgment, in determining whether a constitutional violation occurred, the Court must take the facts in the light most favorable to Patterson and make all reasonable inferences in his favor. The District Court then noted an exception to this rule: “However, the court need not accept Plaintiffs version of the facts to the extent it is contradicted by the evidence in the record.” (Dist.Ct.Op. p. 9.) The Court then referenced language from Scott v. Hards, supra, for the proposition that when a “blatant contradiction” renders a plaintiff’s version essentially unbelievable, the court should not apply the usual standard: “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” (Dist. Ct. Op. p. 9, quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007).)
The District Court then proceeded to point to two aspects of the record that contradicted the version offered by Patterson, so as to cause the Court not to view the evidence in a light most favorable to him. One such contradiction was presented by the video taken of Patterson when he was in the back seat of the police car. In the video, Patterson stated that he “does not like being punched in the face,” and his manner of speech suggested that he was intoxicated at the time. From this, the District Court concluded that Patterson was not unconscious when he was punched in the face, since he was able to recall the punch while sitting in the police car, and further, that his inability to remember could alternatively be attributed to intoxication, rather than unconsciousness.
The second source of contradiction was the testimony of the club’s bouncer, who witnessed the arrest. He testified that Patterson was resisting arrest and was not cooperative with the officers.
The District Court concluded that “no reasonable jury could find that Plaintiff was unconscious while on the ground. Rather, the evidence shows that Plaintiff actively resisted arrest and Defendant acted reasonably to subdue him. Therefore, no constitutional violation occurred and Defendant is entitled to summary judgment on this charge.” (Dist.Ct.Op. p. 11.)
Patterson contends that the District Court improperly applied the limited exception set forth in Scott v. Harris, and also improperly weighed evidence in a manner not appropriate at the summary judgment stage. We agree. The limited exception set forth by the Supreme Court in Scott v. Harris does not apply in the instant fact pattern. Unlike the videotape relied upon by the Supreme Court in Scott, *698which depicted the actual incident, the videotape in this case did not capture the incident and could not therefore contradict, let alone “blatantly contradict,” the record as to what occurred. While the jury might conclude that the videotape was inconsistent with, or gave rise to different inferences regarding, Patterson’s version of events, the videotape in this case does not portray the actual incident; it cannot, and does not, “blatantly contradict” Patterson’s version of events as the video did in Scott v. Harris. There, the video of the police chase contradicted Scott’s version of the key event on which the claim was based. As Patterson notes, courts have declined to apply the limited exception set forth in Scott v. Harris where a videotape or other mechanical depiction does not capture the whole incident or the entire arrest, or where the videotape or mechanical depiction is susceptible to multiple reasonable interpretations.2
We agree, further, that crediting the testimony of the club’s bouncer, and concluding that it contradicts Patterson’s version in such a way as to alter the standard and preclude Patterson from proceeding to trial, was improper. The bouncer’s testimony, together with all other testimony, should be heard by a jury, and its credibility judged accordingly. Accepting the bouncer’s version over Patterson’s at the summary judgment stage was error.
In light of the foregoing, the District Court’s grant of summary judgment in favor of Sgt. Howard based on qualified immunity in light of the absence of a constitutional violation will be VACATED and the matter REMANDED for further proceedings in the District Court.
. The District Court had subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291, as this matter is on appeal from the final order of the District Court.
Patterson is appealing from an order granting summary judgment and dismissing the case. The standard of review is therefore plenary. Couden v. Duffy, 446 F.3d 483, 491 n. 3 (3d Cir.2006); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir.1999).
. See, e.g., Re: Buber v. Township of Old Bridge, 2007 WL 4557658, *3, 2007 U.S. Dist. LEXIS 93841, *8 (D.N.J., Dec. 21, 2007) (noting that a 911 call and radio transmission did not conclusively demonstrate whether police officers had repeatedly hit the plaintiff and holding that “[t]his is not an instance, as was in Scott, where the entire arrest was recorded by video, and the video failed to demonstrate that Plaintiff had been punched or kicked as alleged."); Mills v. City of Harrisburg, 589 F.Supp.2d 544, 553 n. 5 (M.D.Pa.2008) (declining to apply Scott v. Harris because the relevant audio recording was "susceptible to multiple reasonable interpretations” unlike the videotape in Scott).
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Appellant Gary Harkins apjDeals an order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment in favor of Appellees United States Steel Corporation (“U.S. Steel”)1 and United Steelworkers of America, Local Union 4889 (“USW”) on his claim under § 301 of the Labor Relations Management Act, 29 U.S.C. § 185. Har-kins claims that U.S. Steel violated the collective bargaining agreement when it denied him an advancement opportunity and gave it instead to Thomas Mulé. More particularly, he says that because he is more qualified for the position than Mulé and has more seniority, it was wrong for U.S. Steel to give Mulé the job. Har-kins also claims that USW breached its duty of fair representation by mishandling the grievance he filed with USW after U.S. Steel denied him the position. Because there are no genuine issues of material fact and Appellees are entitled to judgment as a matter of law, we will affirm.
I. Background
A. U.S. Steel, USW, and the Collective Bargaining Agreement
U.S. Steel owns and operates steelmak-ing plants, including the Fairless Works facility in Fairless Hills, Pennsylvania. USW is a local union of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Sendee Workers International Union, and represents hourly production and maintenance workers at U.S. Steel’s Fairless Works plant.
On May 20, 2003, U.S. Steel and USW entered into a collective bargaining agreement, which they refer to as the 2003 Basic Labor Agreement (“BLA”). The BLA governs the process for awarding jobs within the Fairless Works plant. Pursuant to § E.7 of the BLA, when a job becomes available, U.S. Steel must post a bid sheet throughout the plant, and employees can apply for the job by signing the bid sheet. U.S. Steel awards the bid in accordance with § E.l.c of the BLA, which states:
In all cases of promotions, decreases in force and recalls after layoffs, the following factors shall be considered:
(1) ability to perform the work and physical fitness; and
(2) Plant Continuous Service (Plant Service).
Where factor (1) is relatively equal between employees, Plant Service shall be the determining factor.
(App. at 221.) Thus, when multiple employees apply for the same position, U.S. Steel first considers the relative ability of each employee to perform the work, and the most qualified employee is awarded the position, regardless of seniority. Only when the abilities of competing employees are relatively equal does seniority become the determining factor.
B. Walter Hartel and Job Bid No. GH-2006-02
Walter Hartel was a systems repairman who held the title of Maintenance Technician (Electrical) and was one of the most knowledgeable and experienced employees in the “Galvanized Line” Maintenance Department at the Fairless Works plant. Hartel was particularly known for his expertise in electronics. When the managers of the Maintenance Department learned, in *701early 2006, that Hartel would soon be retiring, they conveyed to Susanna Show, the Staff Supervisor of Personnel, and Preston Henderson, the Manager of Employee Relations, the importance of replacing Hartel with someone having significant electronics experience. Accordingly, when U.S. Steel sought to replace Hartel by posting Job Bid No. GH-2006-02 for the position of “Maintenance Technician (Electrical),” the bid sheet stated that “EMPLOYEE MUST HAVE ELECTRICAL/ELECTRONIC EXPERIENCE.” Harkins and Thomas Mulé were among the four employees who signed the bid sheet.
C. Qualifications of Mulé and Harkins
1. Thom,as Mulé
Thomas Mulé is a member of the USW and was hired by U.S. Steel in 1987 as an Electronic Repairman. When Mulé was hired, he was required to take the systems repair test as an prerequisite for the Electronic Repairman job. The systems re-pah1 test assesses knowledge of electronics and electrical subjects, motors, instrumentation, and physics. At the time, U.S. Steel had two groups of electronics related repairmen positions: the Electronic Repairman, and the Instrumentation Repairman. In 1988, U.S. Steel decided to merge the two positions. Thus, the Instrument Repairmen were cross-trained to learn electronics repairs and the Electronic Repairmen were cross trained to learn instrument repairs. Once the individuals had training and knowledge in both areas, the groups were formally merged into one group called Systems Repairmen. In order to become a Systems Repairman at that time, all employees had to take the systems repair test.
Mulé worked as a Systems Repairman until 1991, when he was laid off. He was recalled in 1994 and again worked in that same position. During both of those periods with U.S. Steel, Mulé worked in the Maintenance Department with Walter Hartel. Mulé was again laid off in 2001. At the time of his layoff, he was a Systems Repairman and had worked as such during the entire length of his employment with the exception of the short period of time when he initially worked as an Electronic Repairman.
2. Gary Harkins
Harkins is also a member of the USW and began his employment with U.S. Steel in 1973. At the time Harkins applied to be considered for Job Bid No. GH-2006-02, he was an Operating Technician with significant electrical expeiience but limited electronics experience, and he had never worked as a Systems Repairman. Early in his career at the Fairless Works facility, Harkins worked on the production line in the sheet and tin division. From 1989 through 1990, he attended the Electrical Learners Program at Bucks County Community College, where he took classes entitled Principles of Electronics, Industrial Electronics, Introduction to Digital Systems, Electronic Circuits, and Electrical Circuit Analysis. Harkins became a Motor Inspector on the so-called “Pickle Line,” where his responsibilities included repairs, preventative maintenance, and “[a]ny and all jobs electrical.” (App. at 20.) He also did some electronics work at the plant.
Harkins has never worked as an Electronic Repairman, Instrument Repairman, or as a Systems Repairman. Furthermore, Harkins never worked in the Maintenance Department with Walter Hartel. Harkins passed the op-teeh test, but has never taken the systems repair test. The op-tech test differs significantly from the systems repair test in that it measures electrical ability, whereas the systems repair test measures electronics ability, *702which, according to the record, is a distinction with a difference.
D. U.S. Steel Awards Bid to Mulé
On February 21, 2006, U.S. Steel announced that it had awarded Job Bid No. GH-2006-02 to Mulé. The decision to award the bid to Mulé was made by Preston Henderson, the company’s Employee Relations manager. Based upon his knowledge of Harkins’s work history and Mulé’s work history, Henderson believed that Harkins had a small amount of electronics experience, but that Mulé “had significant electronic experience.” (App. at 82.) Indeed, Mulé had previously worked in that field with Mr. Hartel, the man being replaced. In comparing Mulé’s and Harkins’s experience, Henderson felt that Mulé had significantly greater relevant experience than Harkins. Given the impending departure of Mr. Hartel and the need to replace him with someone who had electronics experience, Henderson determined “Mulé fit that bill.” (Id.) Therefore, on February 21, 2006, Job Bid No. GH-2006-02 was officially awarded to Mulé.
After the bid was awarded, Harkins approached USW about filing a grievance based on his seniority and his belief that he was at least as qualified for the position as Mulé. The USW filed a grievance on Harkins’s behalf on February 27, 2006, which was denied by management at U.S. Steel at steps one and two of the grievance procedure outlined in the BLA. U.S. Steel maintained that Mulé’s qualifications were superior to those possessed by Harkins. At that point in the grievance proceedings, USW believed it could not win in arbitration without more evidence of Harkins’s qualifications. Therefore, in an attempt to show that Harkins did in fact possess electronics knowledge comparable to that of Mulé’s, USW proposed to U.S. Steel that Harkins be allowed to take the systems repair test. Harkins has not taken the test, and USW has not taken any further action on the grievance, again due to its belief that it would be unsuccessful in arbitration without further evidence of Har-kins’s qualifications.
E. Procedural History
On December 10, 2007, Harkins filed the complaint in this case against U.S. Steel and USW under Section 301 of the Labor Management Relations Act (the “Act”), 29 U.S.C. § 185. Harkins alleges that U.S. Steel breached the BLA by giving Mulé the job over him and that USW breached its duty of fair representation by mishandling his grievance. Following discovery and briefing, the District Court granted summary judgment in favor of U.S. Steel and USW. The Court concluded that a reasonable jury could not find that a breach of the BLA had occurred. Consequently, the Court found it unnecessary to decide whether USW had handled Har-kins’s grievance properly. Harkins filed a motion for reconsideration, which the District Court denied. Harkins filed this timely appeal on February 25, 2009.
II. Discussion2
We exercise plenary review over an appeal from a grant of summary judgment, which means we apply the same standard used by the District Court. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir.2001). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. Proc. 56(c)). “In making this determination, we *703must consider the evidence in the record in the light most favorable to the nonmoving party.” Id.
As this case involves both a claim for breach of a collective bargaining agreement against an employer and a claim for breach of the duty of fair representation against the union, it is considered a hybrid claim under Section 301 of the Act. Del-Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Harkins cannot prevail against either U.S. Steel or USW on his hybrid claim unless he can prove both that U.S. Steel violated the collective bargaining agreement and that USW breached its duty of fair representation. Id. at 164-65, 103 S.Ct. 2281.
The District Court properly concluded that Harkins did not produce enough evidence to allow a reasonable jury to find that U.S. Steel had breached the BLA. The evidence shows that U.S. Steel was looking to replace Hartel with someone who had significant knowledge and experience in the electronics used at the plant. The record plainly demonstrates that Mulé had greater electronics knowledge and experience than Harkins. For example, unlike Harkins, Mulé had been a Systems Repairman, worked under the supervision of Hartel, and passed the systems repair test. Although Harkins had taken electronics courses through U.S. Steel’s Electrical Learner’s Program, he has never worked as a Systems Repairman, never worked under the supervision of Hartel, and has never passed the systems repair test. Thus, despite an admirable investment of time and effort to learn about electrical and electronics issues, Harkins qualifications in electronics were not equal to Mulé’s. Because the BLA specifies that seniority comes into play only when the abilities of the two employees are relatively equal, the District Court correctly concluded that a reasonable jury could not decide that U.S. Steel violated the BLA by awarding the bid to Mulé over Harkins. In light of that conclusion, the District Court was also right in saying that there was no need to address whether USW breached its duty of fair representation to Harkins. The failure on the first part of Harkins’s hybrid claim is fatal to the entirety of it.
III. Conclusion
We will therefore affirm the judgment of the District Court.
. According to U.S. Steel’s Corporate Disclosure Statement, the case caption had incorrectly identified it as USX Corporation. We have corrected the caption accordingly.
. The District Court had jurisdiction pursuant to the Labor Management Relations Act, 29 U.S.C. § 185 and 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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OPINION
PER CURIAM.
Petitioner Yan Liu is a native and citizen of China who entered the United States in March 2005. Liu was served with a Notice to Appear charging her with being subject to removal pursuant to Immigration and Nationality Act § 212(a)(7)(A)(I).
In January 2006, Liu applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In support of her application, Liu alleged that she left China because two men attempted to rape her and took pictures of her without her top on. Liu’s father was apparently able to intervene in the attack, but was then assaulted himself for a period of fifteen minutes. Liu further alleged that when she reported the attack to the police, they did not investigate her case. She contends that she heard that one of the assailants had a relative in the police department. She contends that after the attack, her attackers sent her a threatening letter. They also approached her on a bus and threatened her again. Liu testified that they posted naked pictures of her at her school. Approximately ten months after the assault, Liu departed China for the United States. The Immigration Judge (“IJ”) denied Liu’s applications for relief, concluding that she did not qualify for asylum because she was the victim of *705an attack by criminals and had not been targeted on account of a protected ground. The IJ reasoned that it was “expanding the asylum law a little too far” to include every woman who had been the victim of an attempted rape or humiliating photographs by “criminals.” (A.R. at 52.) The IJ stated that he did not find Liu’s attempt to qualify for asylum on the ground that one of her attackers had “some connection” to the police “persuasive.” (Id.) Specifically, the IJ found that her testimony was inconsistent concerning when she knew that the assailant “Ah Hu” was connected to the police. Liu appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed, agreeing with the IJ that, even if Liu were deemed credible, she failed to sustain her burden of proof applicable to asylum and the more stringent burden applicable to withholding of removal. The BIA concluded that the alleged incidents did not rise to the level of persecution on account of a protected ground and that the record did not support her claim that she has a well-founded fear of persecution. The BIA also rejected Liu’s claim for relief under the CAT.
Liu filed a timely petition for review in the Second Circuit. The petition was transferred to this Circuit. We have jurisdiction over her petition pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s determinations if they are supported by reasonable, substantial and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, “the BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
To be granted asylum, Liu must show that she is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Liu must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in China based on one of these protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief under the CAT, Liu must demonstrate that it is more likely than not that she would be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
Liu argues that the BIA erred when it reasoned that the “alleged incidents do not rise to the level of persecution on account of a protected ground.” (A.R. at 2.) Liu, however, has offered no arguments that would undermine this conclusion. She argues only that the facts of the case are “unclear” as to whether she was attacked based on a protected ground. (Appellant’s Br. 14-15.) She makes similar arguments with regard to her well-founded fear of future persecution and whether she belongs to a particular social group. (Id. at 16, 17.) If the facts are unclear, however, the IJ and BIA properly denied her petition as it is her burden to establish eligibility for relief. See Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003) (applicant has burden of showing that the persecution was on account of the applicant’s race, religion, nationality, membership in a particular social group, or political opinion).
Moreover, aside from pointing to general country conditions in China, Liu did not produce evidence that it is more likely than not that she would be tortured by or at the acquiescence of Chinese officials if she returned to China. Therefore, *706she is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc).
For the foregoing reasons, we will deny her petition for review.
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OPINION
PER CURIAM.
Petitioner, Budhi Yuniartoyo, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
*707I.
Yuniartoyo is a native and citizen of Indonesia. He arrived in the United States on March 27, 2001 as a non-immigrant B-2 visitor, and stayed longer than permitted. As a result, he was placed in removal proceedings. See INA § 287(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ]. On December 17, 2003, Yuniartoyo applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the ground that he would be persecuted by the Indonesian Democratic Party of Struggle (the “PDIP”) if forced to return to Indonesia.
At his removal hearing, Yuniartoyo testified that, before coming to the United States, he lived in Bekasi, Indonesia, where he worked as an entrepreneur. His wife and two children still live there. Yu-niartoyo stated that he was never a member of a political party, but did hold a volunteer position as a community leader.
Yuniartoyo told the court that in April 1999, two members of the PDIP approached and asked him to be a campaign manager for their party. According to Yuniartoyo, the men wanted him to help the organization recruit new voters for an upcoming election. When he refused, the men threatened him, warning that he would be killed if their party were elected to power in 2000. The men returned the next day and threatened him again. Yu-niartoyo testified that the PDIP did not contact him again after the incident in April 1999. However, in January 2001, a PDIP friend told him that his name was on the party’s blacklist. As a result, Yuniar-toyo applied for a visa to leave Indonesia.
Yuniartoyo testified that the PDIP ultimately won the 2000 election, but has since been removed from power. Nonetheless, he is afraid to return to Indonesia because his family has received inquires into his whereabouts, and the PDIP has branches in many locations. When asked why he did not submit an application for asylum sooner, Yuniartoyo stated that he was waiting for conditions at home to improve.
After the hearing, the Immigration Judge (“IJ”) denied Yuniartoyo’s applications for relief. First, the IJ found that his application for asylum was time-barred because he had failed to file it within one year of entering the United States, and had not presented any evidence to justify an exception to the one-year limitation period. See 8 U.S.C. § 1158(a)(2)(B), (D). The IJ further found that, even if Yuniar-toyo’s application had been timely, he failed to meet his burden of proof on his asylum claim. Specifically, the IJ found that the actions taken against Yuniartoyo were not sufficiently “imminent, menacing, [or] severe to constitute past persecution” or support an inference of future persecution. (IJ Oral Decision 20, citing Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005)). For this reason, the IJ also denied Yuniartoyo’s application for withholding of removal. 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(b). Finally, the IJ denied Yu-niartoyo’s claim for relief under the CAT on the ground that he had failed to show that it is more likely than not that he would be tortured if removed to Indonesia. See 8 C.F.R. § 208.16(c)(2); Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir.2007).
Upon review, the BIA affirmed the IJ’s decision. The BIA agreed with the IJ that Yuniartoyo’s asylum application was untimely and that, in the alternative, he failed to establish eligibility for relief. The BIA also agreed with the IJ that Yuniar-toyo failed to meet his burden of proof on his withholding of removal and CAT claims. Yuniartoyo now appeals from the BIA’s order.
II.
We have jurisdiction over this appeal pursuant to 8 U.S.C. § 1252(a). We re*708view the BIA’s decision for substantial evidence. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Under this standard, we will uphold the Board’s findings unless the evidence not only supports a contrary conclusion, but compels it. See id.
On appeal, Yuniartoyo argues that the BIA erred in concluding that: (1) the threats against him did not amount to past persecution; and (2) he failed to demonstrate that he had a well-founded fear of future persecution. Both of these arguments concern his asylum application. As noted above, however, the IJ and BIA determined that Yuniartoyo’s application for asylum was time-barred, and he does not challenge this determination on appeal.1 Therefore, we will consider his first argument only insofar as a finding of past persecution could, in part, support his application for withholding of removal, and we will not consider his second argument.
Yuniartoyo argues that the BIA erred in concluding that the threats against him did not amount to persecution because “in a situation where the threats were death threats ... the severity and seriousness of the threats” renders them “persecutory by their very nature.” (Pet.Br.9.) We disagree. As we explained in Li, unfulfilled threats — even death threats — constitute persecution “in only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm.” 400 F.3d at 164 (internal quotation marks omitted); see, e.g., Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (holding that petitioner, a citizen of the Philippines, had not suffered past persecution where he had received repeated death threats but had lived in the Philippines for six years thereafter without meeting any harm, albeit with the aid of a personal bodyguard and some police protection); Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir.1997) (holding that petitioner, a Bulgarian national, had not suffered past persecution even though he had faced repeated threats by Communist Party authorities, was warned by his boss, a Communist official, that he would lose his job or “something even worse could happen,” and was told by the police that it would be easy for them to “get rid of him”). Given that Yuniartoyo received only two isolated threats in 1999 and was able to remain at home for nearly two more years without meeting any harm, we conclude that substantial evidence supports the BIA’s finding that the threats described by Yuniartoyo do not constitute past persecution.
Accordingly, we will deny the petition for review.
. In any event, we lack jurisdiction to review the propriety of this determination. See 8 U.S.C. § 1158(a)(3); Jarhough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007).
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OPINION
PER CURIAM.
Raul German Fares-Penafiel petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s decision denying his motion to reopen his immigration proceedings. For the following reasons, we wall deny the petition for review.
I.
Fares-Penafiel is a native and citizen of Ecuador who entered the United States without inspection in 1994. In 2005, the former Immigration and Naturalization Service (“INS”) issued a notice to appear charging Fares-Penafiel as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Fares-Penafiel conceded that he was removable as charged but applied for cancellation of removal based on the “exceptional and extremely unusual hardship” that his United States citizen wife would suffer if he was removed. See 8 U.S.C. § 1229b(b)(l). Fares-Penafiel asserted that in 2001 his wife was injured in a serious accident, and although she has sev*710en grown children, she is completely de-pendant on him for support.
The Immigration Judge (“IJ”) denied Fares-Penafiel’s application for cancellation of removal. In addition to questioning the validity of Fares-PenafieFs marriage, the IJ determined that Fares-Penafiel had not established that his wife would suffer the requisite hardship upon his removal. Fares-Penafiel thereafter filed a timely motion to reopen, claiming that his wife’s condition had seriously deteriorated. The IJ denied the motion, stating that he was unconvinced that the materials Fares-Pe-nafiel submitted established that his wife’s condition had worsened or that her “depression, nervousness, or insomnia” were “beyond the ordinary hardship that would be expected when a close family member leaves this country.” The IJ also noted that Fares-PenafieFs motion did not address the concern regarding the validity of the marriage.
Fares-Penafiel appealed the IJ’s decision to the BIA. The BIA, citing to 8 C.F.R. § 1003.1(d)(3), dismissed the appeal in a one-paragraph decision, stating that it was “not persuaded that the findings of fact in the Immigration Judge’s decision ... were ‘clearly erroneous’ or that the decision was otherwise in error.”
Through counsel, Fares-Penafiel now seeks review of the BIA’s final order of removal.
II.
We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. § 1252(a)(1), and review the denial of a motion to reopen for an abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). Fares-PenafieFs sole argument is that the BIA improperly streamlined his appeal, see 8 C.F.R. § 1003.1(e)(4), thereby denying him meaningful review of his claim.1 He asserts that this Court has jurisdiction to review the decision to streamline, and that to do so properly we must review the underlying discretionary decision of the IJ, over which we would not normally have jurisdiction. See 8 U.S.C. § 1252(a)(2)(B) (stating that federal courts do not have jurisdiction to review denials of discretionary relief). However, as the government asserts, the BIA’s decision, while brief, was not an affirmance without opinion issued under the streamlining regulation. Fares-Penaf-ieFs claim is thus meritless.
To the extent that Fares-PenafieFs petition can be read to argue that the BIA’s decision was so lacking in detail as to violate his right to due process, he has not demonstrated that “the BIA did not review the record when it considered the appeal.” See Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.2001) (internal citation omitted). Further, the BIA’s decision is sufficient to demonstrate that it made an individualized determination of Fares-PenafieFs claim, which is all that it is required to do. See Kamara v. Att’y Gen., 420 F.3d 202, 211-12 (3d Cir.2005).
For the foregoing reasons we deny Fares-PenafieFs petition for review.
. Under 8 C.F.R. § 1003.1(e)(4), one member of the BIA may summarily affirm without opinion certain decisions of the IJ. If this procedure is used, the regulations require the BIA to issue an order that reads as follows:
"The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination." 8 C.F.R. § 1003.1(e)(4)(ii).
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OPINION OF THE COURT
SCIRICA, Chief Judge.
In 2007, Krause Publications, Inc. published two toy train catalogs authored by David Doyle. Paul Ambrose brought a copyright infringement action against Krause and Doyle claiming the catalogs infringed Ambrose’s copyrights in toy train catalogs and books he authored (the “Doyle Action”). Within a few months, the parties settled all their claims, and the District Court dismissed the case with prejudice pursuant to the terms of the parties’ Confidential Settlement Agreement (“CSA”).
At the time of settlement, Ambrose had a separate, but related copyright action pending against the Train Collectors Association and Eastern Division — T.C.A. (collectively, “TCA”) (the “TCA Action”). Paragraph 11 of the CSA permitted Am-brose to seek relief from TCA in the TCA Action, “provided, however, that [Am-brose] [would] not seek to collect from [TCA] any judgment on such claims if collection of such judgment or part thereof might foreseeably lead to a claim for indemnification against Krause.... ” Shortly after the CSA was executed, TCA filed a third-party complaint against Krause, asserting claims for indemnification and contribution. Krause then sought leave in the Doyle Action to disclose in the TCA Action the terms of the CSA, and Ambrose simul*713taneously filed a motion to void the CSA, or, in the alternative, to find Krause in breach thereof.1 The District Court granted Krause’s motion to disclose the CSA and denied Ambrose’s motion to void it. TCA and Krause then moved for summary judgment and partial summary judgment, respectively, based on the terms of the CSA. The court granted both motions and entered judgment against Ambrose, finding the CSA barred the TCA Action as a matter of law. We will affirm.2
Ambrose filed a motion in the Doyle Action to declare the CSA void at his election and to reopen the Doyle Action because there was no “meeting of the minds” regarding whether Ambrose would be permitted to continue the TCA Action to judgment in the event of an indemnification claim. Although Ambrose did not seek relief under any particular Federal Rule of Civil Procedure, the parties agree his motion was in effect a Rule 60(b) motion for relief from a final judgment.3 Am-brose contends he set forth “mutual and/or unilateral mistake that was known to both parties,”4 and that the District Court abused its discretion by denying his motion without holding a hearing, allowing discovery, or issuing findings of fact and conclusions of law.5
The District Court’s dismissal of Ambrose’s motion was not an abuse of discretion under the circumstances of this case. Rule 52(a)(3) provides the court is not required to state findings or conclusions when ruling on a motion unless the rules provide otherwise, and Rule 60(b) does not do so. See Fed.R.Civ.P. 52(a)(3); Fed.R.Civ.P. 60(b); Delzona Corp. v. Sacks, 265 F.2d 157, 159-60 (3d Cir.1959) (“Rule 52(a) ... does not require findings of fact and conclusions of law for cases arising under Rule 60(b).”).
Ambrose’s motion, moreover, failed as a matter of law, and thus did not require resolution of factual issues. Ordinary principles of contract law govern settlement agreements under Pennsylvania law.6 Consol. Rail Corp. v. Portlight Inc., 188 F.3d 93, 96 (3d Cir.1999). A mistake of one or both parties at the time of contracting may be a valid ground for rescinding a settlement agreement. See id.; Lanci v. Metro. Ins. Co., 388 Pa.Super. 1, 564 A.2d 972, 974 (1989). “A mistake is a belief that is not in accord with the facts.” Restatement (Second) of Contracts § 151; *714see also Consol. Rail Corp., 188 F.3d at 96 (“ ‘Mutual mistake exists where both parties to a contract are mistaken as to existing facts at the time of execution.’ ” (quoting Holt v. Dep’t of Pub. Welfare, 678 A.2d 421, 423 (Pa.Commw.Ct.1996))).
Ambrose’s argument misunderstands the nature of the mistake doctrine. In his motion to void the CSA, he did not contend that he executed the CSA under a belief that was not in accord with the facts. Instead, Ambrose set forth his interpretation of paragraph 11. Stated differently, Ambrose raised a dispute over the meaning of a particular provision in the CSA. “Disputes over the meaning of a given phrase are common in contract disputes; the presence of such interpretive ambiguity, however, does not go to whether the contract is enforceable, but rather who (the judge or the jury) must decide what the given clause means.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 585-86 (3d Cir.2009). “To hold otherwise would improperly transform run-of-the-mill challenges to the interpretation of contractual language into far more significant disputes over contractual enforceability.” Id. at 586. Because Ambrose did not allege a “mistake” that could void the CSA, the District Court did not abuse its discretion by denying his motion.
Ambrose’s dispute over the meaning of paragraph 11 was addressed by the District Court in its grant of summary judgment in favor of TCA, which Ambrose also challenges.7 The District Court determined the CSA unambiguously barred the TCA Action as a matter of law once TCA asserted its indemnification claim against Krause8 Ambrose contends paragraph 11 contained ambiguous language because he believed the provision that he would not “seek to collect” any judgment meant “execute” a judgment. Under Ambrose’s interpretation, he would be permitted to continue the TCA Action to judgment, and only upon judgment would he be prohibited from executing the judgment “if collection ... might foreseeably lead to a claim for indemnification against Krause.” Am-brose contends the District Court erred by failing to identify this ambiguity and consider the parol evidence he offered.
Ambrose’s argument is without merit. “When a written contract is clear and unequivocal, its meaning must be determined by its contents alone.” Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d 1001, 1010 (3d Cir.1980) (citation omitted); Mace v. Atl. Ref. & Mktg. Corp., 567 Pa. 71, 785 A.2d 491, 496 (2001). A contract is ambiguous if it is reasonably susceptible to different constructions and capable of being understood in more than one sense. St. Paul Fire & Marine Ins. Co. v. Lewis, 935 F.2d 1428, 1431 (3d Cir.1991). Under Pennsylvania law, ambiguous contracts are interpreted by the trier of fact, and unambiguous contracts are interpreted by the court as a matter of law. Mellon Bank, 619 F.2d at 1011 n. 10. We *715agree with the District Court’s conclusion that paragraph 11 unambiguously barred Ambrose from obtaining any judgment from TCA once the indemnification claim was asserted.9 Accordingly, we will affirm the judgment of the District Court.10
. Ambrose does not contend on appeal that the District Court erred by failing to find Krause in breach of the CSA. For ease of reference, we refer to Ambrose’s motion as a motion to void the CSA.
. The District Court had jurisdiction in both actions under 28 U.S.C. §§ 1331, 1332, 1338, and 1400(a). We have jurisdiction under 28 U.S.C. § 1291.
. Ambrose contends his motion was a Rule 60(b)(3) motion for relief from a final judgment for fraud, misrepresentation, or misconduct, while Krause contends the motion was brought pursuant to Rule 60(b)(1) for relief for mistake. Ambrose’s sole argument for voiding the CSA was that there was no "meeting of the minds" with respect to paragraph 11. Ambrose contended the parties had "substantial conflicting understandings of the contractual language contained in Paragraph 11.” Because Ambrose’s motion made no mention of fraud, misrepresentation, or misconduct by Krause, we will review the motion under Rule 60(b)(1).
. Ambrose asserted that he believed the restrictions contained in paragraph 11 would only be applicable once a judgment was entered and that Krause, whose counsel drafted the CSA, either shared this belief or knew of Ambrose’s belief.
. We review the District Court's denial of Ambrose's Rule 60(b) motion for abuse of discretion. Brown v. Philadelphia Housing Auth., 350 F.3d 338, 342 (3d Cir.2003).
. The parties agree that Pennsylvania law applies to this dispute.
. Our review of an order granting summary judgment is plenary, and we apply the same standard as the District Court. Am. Eagle Outfitters, 584 F.3d at 580-81. Summary judgment should be granted "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 and that the movant is entitled to judgment as a matter of law.” Fed.R-Civ.P. 56(c). "All inferences must be drawn in the light most favorable to the nonmoving party.” Am. Eagle Outfitters, 584 F.3d at 581 (citation omitted).
. The District Court also determined paragraph 12 barred the TCA Action because TCA was one of the intended beneficiaries of paragraph 12's release provision. Because we agree with the District Court that paragraph 11 barred the TCA Action once the indemnification claim was asserted, we do not need to decide whether the District Court properly interpreted paragraph 12.
. Ambrose further contends the District Court erred by dismissing his state law claims because they were not impacted by the CSA. The Amended Complaint included state law claims for unfair trade practices (Count V), civil conspiracy (Count VI), breach of contract (Count VIII), and for a declaratory judgment (Count IX). To the extent any of these claims were not dismissed as barred by the CSA, they were dismissed without prejudice as the District Court declined to exercise jurisdiction over any pendent state law claims.
. Krause and TCA bring separate appeals. Krause challenges the District Court’s order denying its motion for leave to file a counterclaim against TCA in the TCA Action. A few hours before the court entered its summary judgment order, Krause filed a motion for leave to file a counterclaim against TCA for negligence and breach of the duty of good faith and fair dealing. The court denied Krause’s motion as moot, but in subsequent orders explained that Krause’s motion was denied without prejudice for the counterclaims to be filed in state court. The court expressly declined to exercise jurisdiction over any pendent state law claims. Krause’s appeal is without merit. "A district court may decline to exercise supplemental jurisdiction over a claim if ‘the district court has dismissed all claims over which it has original jurisdiction.' ” Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169, 174 (3d Cir.2009) (quoting 28 U.S.C. § 1367(c)(3)). Because the District Court had dismissed Ambrose's federal claims, it did not abuse its discretion by denying Krause's motion without prejudice for the state law counterclaims to be filed in state court.
TCA contends its third-party complaint against Krause contained state law claims distinct from its claims for indemnification and contribution. We have reviewed the third-party complaint. The only claims asserted are for indemnification and contribution.
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OPINION
PER CURIAM.
Luz Barros, a native and citizen of Colombia, and her husband, Paulo De Jesus Barros, a native and citizen of Portugal who resided in Colombia before entering the United States, entered the country in 2002 and 2001 respectively. Both overstayed their visas and the Government issued them Notices to Appear. On June 28, 2002, Luz Barros (“Barros”) filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 In her asylum application, and in her testimony before the Immigration Judge (“IJ”), Barros alleged that she feared that FARC guerillas would kidnap and torture her and her husband if they returned to Colombia.2 Barros testified that guerillas targeted her and her husband because of the wealth they acquired from them various businesses. Her first encounter with the guerillas was in 1999, when they called her home, threatened her, and demanded money. She also testified that in 2000, the guerillas killed a cow on their property.
Barros testified that she and her husband first came to the U.S. in 1999 to visit family. They did not apply for asylum at that time because they believed that the situation in Colombia would improve. The couple returned to Colombia but came back to the U.S. again in 2001, but again did not apply for asylum because they did not have any documentation. Barros further testified that in 2002 she returned to Colombia to have surgery and that she lived with her parents and two sisters without incident.
*718The IJ denied the Petitioners’ applications for relief. The IJ found that while Petitioners’ successful business made them targets of guerillas seeking money, their affluence did not qualify as a protected ground for asylum purposes. The IJ further questioned the validity of Barros’ fear given that she returned to Colombia after initially leaving in 1999. The IJ also denied Petitioners’ claims for withholding of removal and protection under CAT. Petitioners appealed to the Board of Immigration Appeals (“BIA”) which adopted and affirmed the IJ’s decision. Petitioners appealed to this Court and we granted the Government’s unopposed motion to remand the case to the BIA in order to address whether wealthy landowners constitute a particular social group. (A.R. at 486-88.)
The BIA remanded the case to the IJ, who held a hearing on the merits of whether the FARC would persecute Petitioners based on their land ownership or based on Paulo de Jesus Barros’ Portuguese nationality. Barros testified that she feared that FARC guerillas would target her because of both her husband’s nationality and her land holdings. The IJ again denied relief, finding that there was no evidence to support Barros’ claim that she would be targeted based on her husband’s Portuguese nationality. Further, the IJ also found that land ownership does not constitute a social group and that the guerillas extorted money from Barros based' on her wealth and not her land holdings. The Petitioners appealed to the BIA which concurred with the IJ’s finding that FARC targeted Barros because of her wealth and that wealthy landowners do not qualify as a social group under the asylum statute. The BIA also agreed that Barros did not present evidence that the couple would be targeted based on her husband’s Portuguese nationality. Petitioners then filed a petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
To be granted asylum, Petitioners must show that they are “unable or unwilling to return to [Colombia] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Petitioners must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Colombia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3).
Petitioners argue that the BIA and IJ erred by ignoring evidence of their membership in a social group of wealthy landowners and industrialists.3 (Petr.’s Br. at 14.) This argument, however, does not address the BIA’s holding that respondents did not show the required “nexus” between their alleged persecution and a statutorily protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009) (“a key task for any asylum applicant is to show a sufficient *719‘nexus’ between persecution and one of the listed protected grounds.”)4 That is, even if Petitioners’ status as wealthy landowners meets the definition of a “social group” under the asylum statute, they have not produced evidence that the unfortunate incidents Barros’ testified to were a result of their membership in that group. As the Government notes, Barros’s own opinion that the guerillas targeted her family “for who we are, for what we have,” is not sufficient evidence of a connection between the alleged persecution and a social group. See Babani v. Gonzales, 492 F.3d 20, 22 (1st Cir.2007) (per curiam) (petitioner’s opinion is insufficient evidence to show that mistreatment was connected to a protected ground).
Petitioners rely on the Seventh Circuit’s decision in Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir.2005), to support their argument. In that case, the Seventh Circuit held that educated, wealthy, landowners in Colombia could qualify as a social group under the asylum statute. Id. at 673. The FARC guerillas in Orejuela threatened the petitioners because the father of the family was a “renowned” cattle rancher and the family was part of a “privileged group” that had gone to schools and universities. Id. at 672. Moreover, the guerillas murdered the husband, tracked the family’s movements, and repeatedly threatened the sons. Id. at 670.
In the instant case, Petitioners attempt to establish that they belong to the same social group as the petitioners in Orejuela by providing evidence of their education, their landownership, and of their business activities. They also point to incidents in which thieves burglarized their home, and assailants lolled a cow on their property, kidnapped the family dog, and threatened them with kidnapping over the telephone. The missing piece, however, is any indication that the incidents were a result of their landownership or business holdings instead of wealth, which they concede does not, standing alone, satisfy the requirements for a “social group.” (Petr.’s Br. at 27.) While we agree with Petitioners that the alleged persecutors need not spell out their motives in order for the BIA to find social group motivated persecution, in the absence of any evidence linking the incidents to Petitioner’s status as wealthy landowners, the record does not compel a different result. See Abdille, 242 F.3d at 494 (“ordinary criminal activity does not rise to the level of persecution necessary to establish eligibility for asylum”); see also Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir.2007) (“After all, guerillas and common criminals are equally apt to resort to violent means to accomplish their goals, and it is the alien’s burden to give the adjudicator some basis for differentiation in a given case.”)
We are also unpersuaded by Petitioners’ argument that they face a likelihood of future persecution in Colombia because of their landownership and wealth. Petitioners’ voluntary return to Colombia in 1999, 2001, and Barros’ return in 2002, (A.R. at 579-82), strongly suggests that they do not have a fear of future persecution and cannot, therefore, satisfy the subjective prong of the “well-founded fear” test. See Toloza-Jimenez v. Gonzales, 457 F.3d 155, 161 (1st Cir.2006) (holding that the fact that Toloza “traveled twice to the United States ... and yet she returned to Colombia each time, strongly indicated] that she has no fear of persecution.”). Finally, Petitioners’ failure to demonstrate eligibility for asylum necessarily means that they failed to qualify for withholding of removal. See *720Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006).
For these reasons we will deny the petition for review.
. Paulo De Jesus Barros’ application for asylum is derivative of his wife's application. Therefore, in this opinion "Barros” refers to Luz Marina Barros.
. "FARC” stands for “Fuerzas Armadas Revo-lucionarias de Colombia.” The group was originally established "to serve as the military wing of the Colombian Communist Party.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 668 (7th Cir.2005).
. Inasmuch as Petitioners do not argue that the husband’s Portuguese nationality is a basis for relief, we do not consider the merits of that claim. See Konan v. Att’y Gen., 432 F.3d 497, 500 n. 2 (3d Cir.2005).
. Because Petitioners filed their asylum application before the passage of the REAL ID Act of 2005, they are required to show that the persecution was caused "at least in part” by membership in a protected group. Ndayshimiye, 557 F.3d at 129.
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
A jury found appellant Sheila Margaret Hayford guilty on five counts of making a false statement under penalty of perjury in violation of 18 U.S.C. § 152(3)1 and five counts of bankruptcy fraud under 18 U.S.C. § 157(1).2 She appeals, insisting *721that the evidence was insufficient to support each of the ten verdicts. Hayford did not challenge the sufficiency of the evidence in the District Court and we, accordingly, review for “plain error.” “A conviction based on insufficient evidence is plain error only if the verdict ‘constitutes a fundamental miscarriage of justice.’ ” United States v. Thayer, 201 F.3d 214, 219 (3d Cir.1999) (quoting from United States v. Barel, 939 F.2d 26, 37 (3d Cir.1991)). There is ample evidence supporting each of the challenged verdicts, and we will affirm. Because we write only for the parties, we will assume knowledge of the record and the proceedings.
I.
By February 20, 2002, Hayford was delinquent on her mortgage, and CitiCorp Trust Bank FSB (“Citi”) filed a foreclosure action. A default judgment was entered against Hayford on April 15, 2002. Between that date and September 7, 2006, seven separate sheriffs sales were scheduled on her residence. All seven were stopped by operation of the automatic stay in bankruptcy occasioned by Hayford’s filing of a series of seven bankruptcy petitions, five of which were subjects of the indictment. She admitted at trial that her purpose in filing this series of petitions was to prevent the scheduled sale.
II.
With respect to the Section 157(1) bankruptcy fraud charge, the government proved that Hayford devised and executed a scheme to defraud Citi of its legal right to sell her residence to satisfy its judgment by delaying and defeating scheduled sheriffs sales over a period of more than four years. The government did this by offering evidence, inter alia, of (1) the timing of the five petitions relative to the scheduled sales; (2) the fact that Hayford did not pursue any of her bankruptcy cases as would someone who sought bankruptcy protection in good faith; (3) Hay-ford’s own admission that a goal of her repeated petition filings was to delay the scheduled sheriffs sales; and (4) the fact that Hayford lived in her residence without making mortgage payments for the entire period of her filings. A rational jury could clearly draw an inference from the government’s evidence that Hayford’s intention was to trigger the automatic stay and thereby defraud Citi through abuse of the bankruptcy system.
Hayford argues that the jury unreasonably found that she had an intent to defraud Citi. She points to evidence tending to show that she was attempting to sell her residence and repay Citi, insisting that her “actions were consistent with her attempt to pay the financial institution, not an attempt to defraud” it. Appellant’s Br. at 24. However, Citi had the legal right to have Hayford’s residence immediately sold to satisfy her debt to it in the Spring of 2002 and at all times over the next four plus years. A reasonable jury could, and did, determine that she devised a scheme to defraud Citi of that right whether or not it believed that she hoped to repay Citi at some point in the future.
III.
Hayford signed each of her bankruptcy petitions “under penalty of perjury.” App. at 154-55. Like all debtors, she was required to list prior bankruptcy petitions she had filed within the relevant time period, either the preceding six years or, since October 2005, the preceding eight *722years. Instead of providing an accurate statement of her bankruptcy filing history, Hayford falsely listed only one prior bankruptcy per petition.
Hayford argues before us that there was insufficient evidence that she acted knowingly and with fraudulent intent and that her representations were material. She acknowledges, of course, that she was aware in each instance that she had previously filed more than one petition. Because Hayford’s admitted purpose in filing the petitions was to delay the imminent sheriffs sale, a rational jury could infer that her repeated falsehoods were designed to accomplish her stated objective. The government’s evidence demonstrates that new cases by debtors who have filed more than two prior petitions receive different treatment from the Bankruptcy Court, including possible review to determine whether the proceeding should be dismissed. To delay the sales by operation of the automatic stay, Hayford needed only to be certain that the petition would be filed and served on her creditors. The only place on the petitions where Hayford risked failing in her purpose — by drawing the scrutiny of the Bankruptcy Court— was with respect to her filing history. That was the only place on the petitions where she provided false information time after time. A rational jury could have inferred from the targeted nature of her false representations and from the evidence concerning the bankruptcy process that those misrepresentations were material, knowing, and made with fraudulent intent.
IV.
The judgment of the District Court will be affirmed.
. Section 152(3) of Title 18 of the United States Code provides that whoever "knowingly and fraudulently makes a false declaration, certificate, verification or statement under penalty of perjury” within the meaning of section 1746 of Title 28 “in or in relation to any case under title 11 [the Bankruptcy Code]” shall be guilty of an offense against the laws of the United States.
. Section 157(1) of Title 18 of the United States Code states that: "A person who, hav*721ing devised or intending to devise a scheme or artifice to defraud and for the purpose of executing or concealing such a scheme or artifice or attempting to do so — (1) files a petition under title 11... shall be fined under this title, imprisoned not more than 5 years, or both.”
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OPINION
PER CURIAM.
Pursuant to Title VII of the Civil Rights Act of 1964, Appellant Edward Rainey filed a pro se employment discrimination action in the District Court against his former employer, Diamond State Port Corporation (“Diamond State”), alleging that he was unlawfully disciplined and terminated on account of his race. Despite being served with the complaint, Diamond State failed to answer or otherwise respond to it. On March 27, 2009, the District Court entered a default judgment in Rainey’s favor, but it awarded him only nominal damages in the amount of $250 because it doubted the merit of his claim. Rainey appealed. For the reasons that follow, we will affirm the District Court’s order.
I. Background
In May 2007, Rainey was terminated from his job at Diamond State after the company determined that he was the aggressor in a physical altercation with a coworker. The incident was apparently Rainey’s second confrontation with a coworker within a year. The evidence provided by Rainey to the District Court indicated that he was the likely aggressor in each confrontation. Rainey requested a *724grievance hearing, and was represented by his Union at the hearing, but the grievance officer upheld the termination.
Rainey filed a complaint with the Delaware Department of Labor. At the completion of its investigation on July 13, 2007, the Delaware Department of Labor issued a “No-Cause Determination” and issued Rainey a Right to Sue Notice. He filed his complaint with the District Court for the District of Delaware on February 15, 2008, and service was effectuated by the United States Marshals Service. The defendant filed no response to Rainey’s complaint and made no appearance. After the Clerk entered a default, see Fed.R.Civ.P. 55(a), which was mailed to defendant, Rai-ney filed a motion for default judgment. Default judgment was granted; however, the District Court reviewed Rainey’s submissions, concluded that it had doubts regarding the merits of his claims, and awarded him only $250 in nominal damages. Rainey appealed.
II. Jurisdiction and Standard of Review
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s handling of a default judgment, including its computation of damages and decision whether to conduct a hearing on damages for abuse of discretion only. See, e.g., Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir.1984); KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 18 (1st Cir.2003). A District Court abuses its discretion when its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Morris v. Horn, 187 F.3d 333, 341 (3d Cir.1999) (quoting Reform Party v. Allegheny County Dept. of Elections, 174 F.3d 305, 311 (3d Cir.1999) (en banc)).
III. Analysis
When a plaintiff prevails by default, he or she is not automatically entitled to the damages they originally demanded. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990). Rather, defaults are treated as admissions of the facts alleged, but a plaintiff may still be required to prove that he or she is entitled to the damages sought. Id.) DIRECTV Inc. v. Pepe, 431 F.3d 162, 165 (3d Cir.2005). The damages Rainey sought could not be determined with exactness on the cause of action by a simple mathematical calculation or by application of definitive rules of law. “If it is necessary to determine the amount of damages or to establish the truth of any averment by evidence, the court may conduct a hearing.” Durant v. Husband, 28 F.3d 12, 15 (3d Cir. 1994) (quoting Fed.R.Civ.P. 55(b)(2)) (emphasis added) (internal quotation marks omitted). For the reasons that follow, we do not believe Rainey has shown an abuse of discretion in the District Court’s decision to award only nominal damages in the absence of a hearing.
To win damages in an employment discrimination case, a plaintiff must prove membership in a protected class and that he or she was terminated on account of membership in that protected class rather than for legitimate nondiscriminatory reasons. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).1 To do so, a plaintiff *725can produce direct evidence of his or her employers’ illegal motives or show that similarly situated employees who were not members of the protected class were treated more favorably. Id.
To determine if Rainey has met his burden we review the evidence that was before the District Court. Rainey’s evidence showed that he was involved in two fights at work during the year prior to his termination, and that he was deemed the aggressor in each incident. Although he disputes that he was in fact the aggressor, he did not offer any evidence of similarly situated white or female employees who had kept their jobs, despite being deemed the aggressors in multiple physical altercations on the job. Nor did he offer any evidence that defendant deemed him the aggressor because he was a member of a protected class or that he was fired for a discriminatory purpose.
After the District Court’s clerk entered the default, the District Court provided Rainey an opportunity to demonstrate his entitlement to damages by ordering Rai-ney to file a statement outlining the damages he was seeking and to provide support for those damages. In response to that order Rainey filed an incoherent statement and attached a variety of financial statements and personal bills, which the court sealed to protect his privacy. The closest Rainey came to properly alleging discrimination is his statement in his informal brief before us, in which he stated “Timmy Miller full timer employee get wrote up 3 or 4 times and was on contract still have his job, Kelly Thomas and Brgette two part timer union sisters fith-ing same matter like assaults on union people [sic.].” Without further information regarding the demographics of the employees named above and their circumstances, it is impossible for us to determine if Rainey was treated less favorably on account of a protected ground. Regardless, Rainey did not present this information to the District Court when he was given the opportunity to do so. Under these circumstances, we find that the District Court did not abuse its discretion in awarding only nominal damages because it was clear that even when all of the factual allegations and evidence were considered in the light most favorable to Rainey, he did not make allegations sufficient to establish that he was fired on account of his membership in a protected class. It is therefore clear that Rainey could not establish any entitlement to damages beyond the $250 in nominal damages he was awarded by the District Court on account of the defendant’s default, even if the court had held a healing.
IV. Conclusion
For the foregoing reasons, we will affirm the District Court’s judgment awarding Rainey $250 in nominal damages.
. Typically, once a plaintiff makes a prima facie case, the burden shifts to the defendant to establish a nondiscriminatory reason for taking the adverse employment action. If the defendant can do so, the burden shifts back to the plaintiff to show that the defendant's justifications were mere pretext. This burden shifting cannot occur when a plaintiff prevails by default because the defendant declines to participate in the litigation, as is the case here. Appropriately, given the circumstances, the District Court looked to whether Rainey made out a prima facie case.
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Gregory Hall appeals his judgment of conviction following a conditional guilty plea in which he reserved the right to appeal the District Court’s denial of his motion to suppress physical evidence. We will affirm.
I.
Because we write for the parties, we recount only the essential facts. On October 3, 2007, a confidential informant told Detective Nadzom of the York City Police that Hall was seen parking a red Chevy van behind the federal housing unit rented by Hall’s girlfriend, Ashley Smith. Hall’s location was of interest to police because he had outstanding warrants in York County for probation violations and for selling cocaine base (crack). Because of the outstanding warrants, Detective Nad-zom and other officers proceeded to Smith’s residence, arriving approximately thirty minutes after Hall had arrived there.
When the officers arrived at Smith’s apartment, they found Hall and searched him incident to his arrest on the outstanding warrants. During the search, police found in Hall’s pockets five ecstasy pills, the keys to the Chevy van, and $401 in cash. Hall was taken into custody and Detective Nadzom drove the Chevy van to the impound lot, where he conducted a routine inventory search that did not turn up additional evidence.
Before police seized the van, Smith informed them that Hall had bought the van one month earlier for between $1,500 and $2,000 in cash and registered it in Smith’s name. This was significant because Detective Nadzom — who knew Hall since at least 2006 when he made three controlled purchases of illicit drugs from Hall — was *727aware that Hall was unemployed. Later, while Hall was in custody at the police station, he told officers he was unemployed and that the ecstasy pills were for personal use.
Sixteen days after Hall was taken into custody, a reliable confidential informant told police the Chevy van contained cocaine. Based on this tip, police deployed a canine to sniff the van and the dog indicated there were drugs near the driver’s side door. The officers then obtained a warrant to search the van and found 101 grams of crack cocaine and a digital scale hidden in a compartment in the driver’s side door.
Hall was charged with possession with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. He initially entered a not guilty plea and filed a motion to suppress the evidence seized from his vehicle. The District Court held a suppression hearing and denied the motion. Hall subsequently entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. The District Court sentenced Hall to 120 months incarceration. Hall timely appealed.1
II.
We review the District Court’s factual determinations for clear error and exercise plenary review over the application of the law to those factual determinations. United States v. Price, 558 F.3d 270, 276 (3d Cir.2009).
Hall claims the warrantless seizure of the van was unconstitutional because the officers did not have probable cause to believe the vehicle was used, or was intended to be used, to facilitate the transportation of drugs. If so, Hall insists that the evidence derived from the subsequent search of the van would be inadmissible “fruit of the poisonous tree.”
A warrantless seizure is legal if it is authorized by statute and complies with the Fourth Amendment. United States v. Salmon, 944 F.2d 1106, 1119 (3d Cir.1991). Here, the Chevy van was seized pursuant to the Pennsylvania forfeiture statute, 42 Pa.C.S. § 6801(a)(4), which authorizes police to seize vehicles “which are used or are intended for use to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of’ various controlled substances. The statute further allows warrantless seizures when “there is probable cause to believe that the property has been used or is intended to be used in violation of the Controlled Substance, Drug, Device and Cosmetic Act.” Id. at § 6801(b)(4). Because both the forfeiture statute and the Fourth Amendment allow warrantless seizures with probable cause, the two steps of the Salmon analysis overlap; if the statute was satisfied, then the seizure was valid. See United States v. One 1977 Lincoln Mark V Coupe, 643 F.2d 154, 158 (3d Cir.1981) (finding the Fourth Amendment satisfied because there was probable cause to satisfy the similar federal forfeiture statute).
To establish probable cause to seize Hall’s van, police needed only “a reasonable ground for belief of guilt[J” based on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (internal quotation marks omitted); Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (a “probability, and not a prima facie showing, of criminal activity”) (internal citation omitted). Under the Pennsylvania forfeiture statute, that *728means the officers needed a reasonable ground to believe that the use or intended use of the automobile made it less difficult for Hall to transport, sell or possess drugs. One 1977 Lincoln Mark V Coupe, 643 F.2d at 157 (under the analogous federal statute); Salmon, 944 F.2d at 1119 (applying it to the Pennsylvania statute). The Government has the burden of “establish[ing] some connection between the alleged criminal activity and the defendant property the Government seeks to forfeit.” United States v. RR # 1, Box 224, 14 F.3d 864, 869 (3d Cir.1994). Significantly, the Government does not need to link the vehicle to a specific, identifiable drug transaction. United States v. $10,700.00, 258 F.3d 215, 225 (3d Cir.2001).
On the facts of this case, Detective Nad-zom had reasonable grounds based on the totality of the circumstances to believe Hall recently used, or was about to use, the Chevy van to transport or facilitate the sale or transportation of drugs. Specifically, Nadzom had a reasonable basis to believe Hall recently used or was about to use the van to transport the ecstasy found on his person. Nadzom found the ecstasy and van keys in Hall’s pocket, merely half an hour after Hall parked the van. Although Hall claimed the ecstasy was for personal use, he did so only after the van was seized, so that statement cannot be used to undermine the decision to seize the van.
Detective Nadzom also had a reasonable basis to believe Hall was using the van to possess, transport, or sell drugs, either in conjunction with the ecstasy or independent of it. First, Nadzom knew Hall had a history of drug trafficking based not only on Hall’s outstanding warrant, but also from three controlled buys in 2006 during which Hall sold cocaine to Nadzom. Second, the cash found on Hall’s person at the time of his arrest gave Nadzom a reasonable basis to conclude that Hall was currently dealing drugs. Nadzom knew Hall was unemployed in 2006 and that Hall was a fugitive in 2007. Yet, he found $401 in cash on Hall’s person and learned that Hall paid between $1,500 and $2,000 cash for the van just one month earlier. Third, Nadzom had a reasonable basis to believe Hall was using the van to sell drugs because he knew Hall bought the van with cash, registered it in someone else’s name, and was driving it without a license. When Nadzom testified that, based on his training and fourteen years of experience, Hall’s machinations were consistent with those of a drug dealer, it was well within the District Court’s discretion to find this testimony credible.
Hall claims the District Court committed clear error when it found that “defendant had just arrived at the apartment in the vehicle.” Hall’s focus on the word “just” is unpersuasive, however, because the District Court plainly noted that thirty minutes had elapsed, so the Court expressed the correct time frame and did not err when it used the relative word “just” to characterize it.
Likewise, the fact that it was possible that Hall picked up the ecstasy at the apartment and had no plans to use the van to transport the drugs is unavailing. Probable cause does not require police to eliminate all possible doubt as to the use of the van. Rather, the police only needed information creating a fair probability that the van was involved in transporting drugs to satisfy the statute and the Fourth Amendment. Because this was a fair inference to draw on these facts, the District Court did not err in denying Hall’s motion to suppress.
For the foregoing reasons, we will affirm the judgment of the District Court.
. We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction under 18 U.S.C. § 3231.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Franky Nadal appeals from the District Court’s ruling denying his motion to suppress evidence seized during an investigatory search conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For the following reasons, we affirm the District Court’s judgment.
I.
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We review a district court’s factual findings for clear error and exercise plenary review over its determination that a Terry stop did not violate the Fourth Amendment. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir.1996).
II.
Because we write primarily for the parties, we discuss the facts only to the extent necessary for resolution of the issue on appeal.
Nadal was charged in a three count indictment arising from the 2008 armed robbery of Embers Guest House (“Embers House”) in St. Thomas, Virgin Islands. Off-duty Officer Kelvin Venzen was in the vicinity of Embers House and heard a report over the radio regarding the armed *730robbery. The report also indicated that shots were fired. He informed central dispatch of his location and pulled his car into the Clear View Apartment’s parking lot, which was located near Embers House, to observe vehicles and persons leaving the area from which the shots were fired. There, Officer Venzen, who was in plainclothes, observed an individual drive down the road from the direction of Embers House with the car’s headlights off, pull into the parking lot and push his seat into a reclining position. Officer Venzen then called for back-up. After back-up arrived, Officer Venzen and two uniformed officers approached the vehicle and ordered its occupants out. Nadal initially hesitated and did not get our of the car; in turn, one of the officers drew his weapon. Nadal then got out of his car and the officers patted him down, locating a firearm.
Nadal was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 14 V.I.C. § 2253(a). After holding a hearing, the District Court denied Nadal’s motion to suppress the gun. Nadal then entered a conditional plea of guilty, reserving his right to appeal the District Court’s denial of his motion to suppress. He was sentenced to 14 months imprisonment.
III.
Nadal challenges the District Court’s ruling denying his motion to suppress the gun on the grounds that the warrantless search and seizure violated the Fourth Amendment. See Appellant’s Br. at 4. While warrantless searches and seizures are generally, per se unreasonable under the Fourth Amendment, see United States v. Williams, 413 F.3d 347, 351 (3d Cir.2005), there are several exceptions to this rule. Investigatory searches and seizures can be justified if officers have “a reasonable, articulable suspicion that criminal activity may be afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). Reasonable suspicion requires “ ‘some minimal level of objective justification’ for making the stop.” Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). “This is a lower hurdle than the probable cause necessary to obtain a search warrant, given the lesser infringement on an individual’s liberty. [Pjrobable cause means a fair probability that contraband or evidence of a crime will be found, and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause. While the standards are different, both reasonable suspicion and probable cause require the Court to consider the totality of the circumstances.” United States v. Silveus, 542 F.3d 993, 999-1000 (3d Cir.2008) (internal citation and quotation omitted).
Nadal contends that the District Court should have suppressed the firearm because, under the totality of the circumstances, the officers did not have a reasonable suspicion that criminal activity was afoot, rendering the investigatory stop and frisk unconstitutional. This argument is unpersuasive. The District Court based its ruling on the furtive behavior Nadal engaged in just prior to the Terry stop and frisk. After hearing testimony, the District Court found that Nadal was observed by Officer Venzen driving from the area where the crime was committed with his headlights off. (App.80). Nadal then parked his car and reclined his chair so that he would not be readily visible to anyone looking inside the car. (App.80). This occurred at 10:30 pm, shortly after the armed robbery occurred. (App.80). Considering the totality of these circumstances, the District Court concluded that Nadal exhibited surreptitious behavior aimed at avoiding police detection. *731(App.81). Next, the court also found it reasonable that one of the officers drew his weapon when he demanded that Nadal get out of the car because Nadal had already ignored the first command to exit the car and because the officers were responding to an armed robbery during which shots were fired. (App.81). Thus, under the totality of the circumstances, the District Court ruled the investigatory stop and frisk constitutional.
Nadal does not challenge the District Court’s factual findings per se. Rather, he contends that the factual findings do not do not raise the specter of criminal activity since parking a car at 10:30 pm and reclining in the car’s seat is not out of the ordinary. See Appellant’s Br. at 15. We cannot agree. The District Court credited Officer Venzen’s testimony that he observed Nadal driving from the crime scene with his headlights off and then enter a parking lot and recline in his chair, rendering himself hidden. These findings of fact were not clearly erroneous. Thus, under the totality of these circumstances, we cannot conclude that the District Court erred when it denied Nadal’s motion to suppress the firearm.
Finally, because he did not raise it before the District Court during the suppression hearing, Nadal waived his argument that the tip which led to the stop and frisk should be discounted because it lacked the hallmarks of reliability. See United States v. Rose, 538 F.3d 175, 176 (3d Cir.2008) (pursuant to Fed.R.Crim.P. 12 and absent good cause, a criminal defendant who fails to raise a reason to suppress evidence before the District Court waives the issue on appeal). Nadal does not offer any reason for his failure to raise this issue before the District Court. Therefore, the tip cannot serve as the basis for reversing the District Court’s ruling that the investigatory stop and frisk did not violate the Fourth Amendment.
IV.
For the foregoing reasons, we affirm the judgment of the District Court.
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PER CURIAM:
This is an appeal of a summary judgment entered in favor of the defendants pursuant to the order of a magistrate judge entered on December 22, 2008.1 After hearing oral argument of counsel, we are satisfied for the reasons stated in the December 22, 2008 order that the magistrate judge correctly analyzed and disposed of the plaintiffs’ claims.
AFFIRMED.
. The case was tried by the magistrate judge by consent, pursuant to 28 U.S.C. § 636(c)(1).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arthur Rozier appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Rozier, No. 7:01-cr-00039-F-2 (E.D.N.C. Aug. 6, 2009). We dispense with oral argument *763because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Pyne seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that rea*766sonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Pyne has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Pyne’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp. 2009). Pyne’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrance Lamont Moore appeals from the district court’s order denying his petition for a writ of error coram nobis. We have reviewed the record and find no reversible error. A writ of error coram nobis pursuant to 28 U.S.C. § 1651 (2000) can be used to vacate a conviction when there is a fundamental error resulting in conviction and no other means of relief is available. United States v. Morgan, 346 U.S. 502, 509-11, 74 S.Ct. 247, 98 L.Ed. 248 (1954); United States v. Mandel, 862 F.2d 1067, 1074-75 (4th Cir.1988). Moore fails to establish the grounds needed to obtain relief under the writ. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Simmons seeks to appeal the magistrate judge’s report and recommendation to dismiss his Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The report and recommendation of the magistrate judge is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nyron Joel Nichols petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his notice of appeal. He seeks an order from this court directing the district court to act. Our review of the district court docket sheet reveals that the district court found that his notice of appeal was timely filed and directed the Clerk to process the notice in the usual manner. In view of this order by the district court, we deny the mandamus petition as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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PER CURIAM:
Petitioners Miguel Antonio Rodriguez Rodriguez and Adriana Patricia Valbuena Arias, and their children, Miguel Angel Rodriguez Valbuena and Juanita Rodriguez Valbuena, seek review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order denying their application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the Convention Against Torture (“CAT”). On appeal, they argue that: (1) substantial evidence did not support the IJ’s adverse credibility determination, and, moreover, that the determination violated then* right to due process; and (2) on the merits, the IJ’s denial of asylum was erroneous. After thorough review, we dismiss the petition in part, and deny it in part.
We review jurisdictional questions de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.2006). When evaluating a petition for review of an order by the BIA denying an application for asylum and withholding of removal, we review findings of fact under the highly deferential substantial evidence test, and must affirm the decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.2005) (quotation omitted). Moreover, we review the record evidence in the light most favorable to the agency’s decision, and may not overturn findings of fact unless the record compels it. Id. at 1286-87. Because credibility determinations constitute factual findings, we review such determinations under the substantial evidence test, and will not substitute our judgment for that of the IJ or BIA. Id. at 1286.
When the BIA issues a separate decision, we review only that decision, “except to the extent that [the BIA] expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). “Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well.” Id. We, however, will not review the IJ’s decision as to an issue not addressed by the BIA. Instead, if necessary, we must remand the case to give the BIA “the opportunity to address the matter in the first instance in light of its own expertise.” INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
As an initial matter, we lack jurisdiction over the petitioners’ due process claim and over their claim that the IJ erred when he found that Rodriguez was not a victim of past persecution on account of political opinion. We may not review a final order of removal unless “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner fails to exhaust available administrative remedies, we lack jurisdiction to consider the claim. Amaya-Artunduaga, 463 F.3d at 1250. In Amaya-Artunduaga, we held that an alien did not exhaust administrative remedies when he failed to raise his due process claim before the BIA. Id. at 1251.
*374In this case, we do not have jurisdiction to review the petitioners’ due process claim because they failed to exhaust administrative remedies by not raising that claim in their notice of appeal or brief to the BIA. See 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga, 463 F.3d at 1250-51. We also cannot review their claim that the IJ erred by denying them asylum on the merits, because the BIA did not reach that issue, but simply affirmed the IJ’s adverse credibility determination and reasoned from there. See Ventura, 537 U.S. at 16-17, 123 S.Ct. 353. We therefore dismiss the petition as to these two claims.
We also reject the petitioners’ argument that substantial evidence did not support the IJ’s adverse credibility determination. An alien who arrives in or is present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is:
any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving statutory “refugee” status. Al Najjar, 257 F.3d at 1284. To establish asylum eligibility, the alien must, with specific and credible evidence, establish (1) past persecution on account of political opinion or any other protected ground, or (2) a well-founded fear that political opinion or any other protected ground will cause future persecution. 8 C.F.R. § 208.13(a) and (b). To qualify for withholding of removal, an applicant must establish that it is more likely than not that the applicant’s “life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir.2003) (citing 8 U.S.C. § 1231(b)(3)(A)). When a petitioner fails to establish a claim of asylum on the merits, that petitioner “necessarily fails to establish eligibility for withholding of removal.” Forgue, 401 F.3d at 1288 n. 4. This is because the standard for withholding of removal is significantly higher than the asylum standard. See Amaya-Artunduaga, 463 F.3d at 1249 n. 3. If an IJ makes a finding that a petitioner is not entitled to asylum, that IJ is “not obligated to make specific findings with respect to withholding of removal.” Id.
An applicant’s testimony, if credible, may carry that applicant’s burden of proof without corroboration. 8 C.F.R. § 208.13(a). “Conversely, an adverse credibility determination alone may be sufficient to support the denial of an asylum application.” Forgue, 401 F.3d at 1287. Nevertheless, if an applicant who is not a credible witness produces other evidence of persecution aside from his testimony, the IJ and BIA must consider that evidence. Id. “The weaker an applicant’s testimony, however, the greater the need for corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.2005).
In order to enable our review of credibility findings, the IJ must make a clean, explicit determination of credibility. Id. “Once an adverse credibility finding is made, the burden is on the applicant alien to show that the IJ’s [and BIA’s] credibility decision was not supported by specific, cogent reasons or was not based on substantial evidence.” Forgue, 401 F.3d at *3751287 (quotation omitted). “Indications of reliable testimony include consistency on direct examination, consistency with the written application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir.2006).
The Real ID Act of 2005 (“RIDA”), which amended the INA’s asylum provisions, provides:
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal inconsistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
Pub.L. No. 109-13, § 101(a)(3), (d)(2), 119 Stat. 231, 303, 304-05 (codified at 8 U.S.C. §§ 1158(b)(l)(B)(iii), 1229a(c)(4)(C)). This provision of RIDA applies to asylum applications filed after May 11, 2005. Pub.L. No. 109-13, § 101(h)(2), 119 Stat. at 305.
In this case, the IJ made a clean adverse credibility determination against Rodriguez. The IJ explicitly found Rodriguez’s testimony inconsistent and not credible. See Yang, 418 F.3d at 1201. Moreover, substantial evidence supported that determination. The IJ noted, and Rodriguez now admits, that Rodriguez’s wife’s testimony contradicted Rodriguez’s testimony regarding at what time and to whose house in Bogotá Rodriguez returned after the roadblock shooting incident. While the discrepancy regarding the time is relatively minor, the discrepancy regarding at whose house Rodriguez and his wife were staying at the time is stark. Under RIDA, which applies to this case, the IJ was free to base his credibility determination on this inconsistency of Rodriguez’s testimony “with other evidence of record,” such as his wife’s testimony. 8 U.S.C. §§ 1158(b)(l)(B)(iii).
In addition, the BIA also considered Rodriguez’s nontestimonial evidence. See Forgue, 401 F.3d at 1287. The BIA expressly explained how Rodriguez’s submitted documents, including photographs of the car, a newspaper article, and Sermiento’s death certificate, failed to corroborate his testimony. And since Rodriguez’s testimony contradicted his wife’s testimony on two grounds, the need for corroborative evidence was all the greater. See Yang, 418 F.3d at 1201.
Finally, because the IJ did make a clean credibility finding, it is Rodriguez’s burden to show that the finding was not supported by specific, cogent reasons, or was not based on substantial evidence. See Forgue, 401 F.3d at 1287. Rodriguez, however, cannot bear that burden here because all of his arguments are without merit. First, because RIDA applies to the case, the IJ was free to base his credibility finding on inconsistencies that did not go the heart of Rodriguez’s claim. See 8 U.S.C. §§ 1158(b)(l)(B)(iii). Second, while Rodriguez in his brief argues that “relevant and persuasive evidence” explained the alleged discrepancies, he does not, and cannot, point to any such evidence. Third, the discrepancies were not due to his wife’s lack of personal knowledge of the details of the incidents. The discrepancies concerned facts squarely within her personal knowledge, namely, where she was staying on December 20, 2005, and at what *376time Rodriguez returned there that night. Moreover, her testimony does not indicate that it was based on anything other than her personal knowledge of those facts. Fourth, even if Rodriguez’s own testimony closely mirrored his application addendum statement, that consistency did not negate the inconsistencies between his and his wife’s testimony. And lastly, given that Rodriguez bore the burden of establishing that he was entitled to relief, it was not the IJ’s duty to bring the discrepancies to the attention of the witnesses. See Al Najjar, 257 F.3d at 1284. These were not mere ambiguities that reasonably called for clarification on the record.
Because Rodriguez cannot establish that the adverse credibility finding was not based on substantial evidence, and given that such a finding is sufficient to support the denial of asylum, and, necessarily, withholding of removal, we deny the petition regarding this claim. See Forgue, 401 F.3d at 1287,1288 n. 4.
PETITION DISMISSED IN PART, DENIED IN PART.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Pyne seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that rea*766sonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Pyne has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Pyne’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp. 2009). Pyne’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Simmons seeks to appeal the magistrate judge’s report and recommendation to dismiss his Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The report and recommendation of the magistrate judge is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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ON MOTION
ORDER
Upon consideration of Dixon H. Isaac’s 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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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell L. Padgett appeals the district court’s order granting his 18 U.S.C. § 3582 (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Further, we note that any error resulting from the district court’s failure to apportion the amended sentence among the counts of conviction was harmless. See United States v. Chase, 296 F.3d 247, 249-50 (4th Cir.2002). We deny Padgett’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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PER CURIAM: *
The U.S. Bankruptcy Court for the Southern District of Texas imposed monetary sanctions on the appellants for filing a bad faith bankruptcy petition containing significant misstatements of fact. The appellants appealed to the U.S. District Court for the Southern District of Texas, which remanded to the bankruptcy court to clarify whether it had imposed the sanctions pursuant to Fed. R. Bankr.P. 9011 or on the basis of the inherent powers of the bankruptcy court. The bankruptcy court issued a second order clarifying that Rule 9011 was the basis of the sanctions. The district court affirmed that order, and the appellants appealed to this court. The amount of the sanctions at issue is $10,000 for Thomas Wayland and $5,000 for Timothy Byrd.
“We review a district court’s affirmance of a bankruptcy court decision by applying the same standard of review to the bankruptcy court decision that the district court applied.” In re Martinez, 564 F.3d 719, 725-26 (5th Cir.2009). “We thus generally review factual findings for clear error and conclusions of law de novo." Id. at 726 (quoting In re OCA, Inc., 551 F.3d 359, 366 (5th Cir.2008)) (internal quotation marks omitted). We review a bankruptcy court’s decision to impose sanctions for abuse of discretion. In re First City Bancorporation of Tex. Inc., 282 F.3d 864, 867 (5th Cir.2002). “A court abuses its discretion when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (quoting Chaves v. M/V Medina Star, 47 F.3d 153, *839156 (5th Cir.1995) (internal quotation marks omitted)).
The bankruptcy court clearly had a sufficient evidentiary basis for its factual conclusion that the appellants filed their bankruptcy petition in bad faith. The appellants argue that sanctions under Rule 9011 are somehow akin to criminal contempt sanctions and that bankruptcy courts therefore lack the power to impose them, but there is no legal basis for equating the two types of sanctions. See In re DeVille, 361 F.3d 539, 552-53 (9th Cir.2004) (distinguishing between the processes and purposes of Rule 9011 sanctions and criminal contempt).
The appellants further argue that the imposition of Rule 9011 sanctions is not a “core” matter over which bankruptcy courts have jurisdiction to issue final orders under 28 U.S.C. § 157. But the imposition of sanctions on litigants in a bankruptcy case is clearly a matter “arising in” such a case, 28 U.S.C. § 157(b)(1), so bankruptcy courts have jurisdiction to issue such orders. See In re Memorial Estates, Inc., 950 F.2d 1364, 1370 (7th Cir.1991); cf. In re Southmark Corp., 163 F.3d 925, 930-31 (5th Cir.1999) (holding that a lawsuit alleging malpractice by an accountant in a bankruptcy case was a “core” matter within a bankruptcy court’s jurisdiction).
Finally, the appellants argue that the bankruptcy court lacked the power to impose Rule 9011 sanctions on remand because the U.S. Trustee did not cross-appeal from the original imposition of sanctions. But the bankruptcy court’s decision on remand only clarified the legal basis of the sanctions the court had initially imposed (and also reduced the amount of the sanction against Mr. Wayland after he expressed remorse). No cross-appeal is needed in order to give an appellate court the power to remand for clarification of the legal basis for the imposition of sanctions. See Crowe v. Smith, 151 F.3d 217, 240 (5th Cir.1998) (vacating an order imposing sanctions under an incorrect theory, and remanding for consideration of whether sanctions could be imposed under an alternative theory, when only the parties who were sanctioned had appealed).
For the foregoing reasons, we AFFIRM the district court’s judgment affirming the bankruptcy court’s sanctions order.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
Saqib Abdul Rasheed petitions this court to review the decision of the Board of Immigration Appeals (BIA) dismissing his appeal and affirming the immigration judge’s (IJ) order that Rasheed was ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(3) because he had committed an aggravated felony. Rash-eed, who has been convicted in state court of possession of controlled substances on more than one occasion since his admission to the United States, contends that his second state misdemeanor conviction should not be treated as an aggravated felony under federal law because the decision allowing such treatment is no longer valid law. He also argues that his second conviction was not punishable under the federal recidivist drug-possession statute because he was not given proper notice of any intent to use the previous conviction to increase his sentence.
The BIA correctly determined that Rasheed had committed an aggravated felony for immigration law purposes. See Carachuri-Rosendo v. Holder, 570 F.3d 263, 266-68 (5th Cir.2009), petition for cert. filed (July 15, 2009) (No. 09-60). The federal notice requirement of 21 U.S.C. § 851 did not apply. See United States v. Cepeda-Rios, 530 F.3d 333, 336 n. 11 (5th Cir.2008).
Rasheed’s petition for review is DENIED.
Pursuant to 5th Crit R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
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ORDER
Gary Pierce, now proceeding pro se, appeals the district court’s entry of summary judgment against him. On the day that Pierce’s response to the motion for sum*29mary judgment filed by the Illinois Depart of Human Services (“IDHS”) was due, Pierce’s then-counsel asked for an extension of time to file a response. The district court granted the request, albeit on the date that counsel had requested, but counsel did not file the response in time. Citmg a local rule which provides that a failure to respond to a motion for summary judgment means the motion is admitted, the district court granted summary judgment in the defendant’s favor. We affirm the grant of summary judgment in favor of IDHS in light of counsel’s failure to comply with deadlines throughout this case and because summary judgment was proper as a matter of law.
I. BACKGROUND
The Illinois School for the Deaf is a residential school in Jacksonville, Illinois that serves deaf and hard-of-hearing children. IDHS operates the school. Gary Pierce began working at the school in 1994 as a residential care worker and left in 2003 after he took an educational leave of absence.
Pierce, an African-American male, maintains he was subjected to discrimination and harassment on the basis of his race during his employment at the school. After receiving a right-to-sue letter from the EEOC, he filed suit in federal court. The district court granted IDHS’s motion to dismiss the complaint, and Pierce appealed. We affirmed the dismissal of Pierce’s disparate treatment claim but concluded the complaint stated a hostile work environment claim, and we remanded for further proceedings. Pierce v. Ill. Dep’t of Human Servs., 128 Fed.Appx. 534 (7th Cir.2005) (unpublished).
On December 21, 2006, IDHS moved for summary judgment on Pierce’s hostile work environment claim. Pursuant to local rules, Pierce’s response was due twenty-one days later, on January 11, 2007. On the day the response was due, Pierce’s counsel filed a written motion for an extension of time that asked the district court to grant her until February 10, 2007 to file the response. February 10, 2007 was actually a Saturday. The district court did not rule on Pierce’s motion for an extension until Monday, February 12, 2007. When it did, it granted the motion and stated the response was due the same day (February 12, 2007).
Two days later, Pierce’s counsel filed a motion that requested an additional four days (through February 16) to file a response to IDHS’s motion for summary judgment. Counsel stated in support of her motion that she had been in the process of finalizing the response when a blizzard hit on February 13, which snowed in counsel’s administrative assistant and also rendered Pierce unable to leave his house to sign his affidavit.
On February 15, 2007, 2007 WL 522022, the district court granted IDHS’s motion for summary judgment. The district court cited United States District Court for the Central District of Illinois Local Rule 7.1(D)(2), which states that “a failure to respond [to a summary judgment motion] shall be deemed an admission to the motion.” The next day, Pierce’s counsel moved to file a response to the motion for summary judgment instanter. In that motion, counsel stated that she thought February 12 was a federal holiday (it was not), and that a blizzard had hit on February 13. The district court denied the motion pursuant to Local Rule 7.1(B)(1), which requires that any motion that raises a question of law include citations to supporting law or authority upon which the movant relies and also requires that it identify the rule under which the motion is filed. The district court also stated that its earlier ruling to deem the motion for *30summary judgment admitted was appropriate in light of the circumstances of the case, as counsel had waited until the last minute to do everything. Pierce appeals, now proceeding pro se.
II. ANALYSIS
Pierce appeals from the district court’s entry of summary judgment against him. The district court granted IDHS’s motion for summary judgment in light of United States District Court for the Central District of Illinois Local Rule 7.1(D)(2), which provides:
Response to Motion For Summary Judgment:
Within 21 days after service of a motion for summary judgment, any party opposing the motion shall file a response. A failure to respond shall be deemed an admission of the motion.
The district court deemed Pierce to have admitted the motion because a timely response had not been filed.
We review for an abuse of discretion a district court’s determination that a litigant filed a response to a motion for summary judgment late and therefore refused to consider it. Raymond v. Ameritech Corp., 442 F.Sd 600, 604 (7th Cir.2006). Federal Rule of Procedure 6(b) authorizes a court to establish deadlines and gives it the authority to enforce them, Raymond, 442 F.3d at 605, and we have repeatedly recognized the importance of complying with local rules. See Koszola v. Bd. of Educ. of the City of Chi., 385 F.3d 1104, 1109 (7th Cir.2004) (“ ‘[W]e have emphasized the importance of local rules and have consistently and repeatedly upheld a district court’s discretion to require strict compliance with its local rules governing summary judgment.’ ”) (quoting Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002) (internal quotation marks omitted)); see also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003); Spears v. City of Indianapolis, 74 F.3d 153, 156-57 (7th Cir.1996).
The consequences of failing to comply with a district court’s local rules can be severe. “[T]he district court clearly has authority to enforce strictly its Local Rules, even if a default results.” Tobel v. City of Hammond, 94 F.3d 360, 362 (7th Cir.1996). And, unfortunately for Pierce, civil litigants are held responsible for the mistakes or omissions of their attorneys. See Easley v. Kirmsee, 382 F.3d 693, 699-700 (7th Cir.2004); Tango Music, LLC v. DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir.2003).
Under the circumstances present in this case, it would not be easy to find that the district court abused its discretion when it determined that Pierce’s counsel failed to comply with Local Rule 7.1(D)(2) and then enforced that rule. Counsel did not move to extend the time to file a response to IDHS’s motion for summary judgment until the very day it was due. In her motion, counsel asked the district court to give her until February 10, 2007 to file the motion, yet the motion was not ready on that day. That meant that although counsel had 53 days from the day IDHS filed its motion for summary judgment through February 12, counsel did not have its response ready. Cf. Raymond, 442 F.3d at 608 (affirming district court’s decision not to accept late response to motion for summary judgment when party had 48 days to file response).
As the district court suggested, the failure to file a response to the motion for summary judgment on time was not the first problem with deadlines in this case. The district court entered a scheduling order directing that the parties make their initial disclosures by August 3, 2005. When Pierce’s initial disclosures had not *31been made, IDHS filed a motion on September 30, 2005 that asked the court to enter an order compelling the plaintiff to provide its initial disclosures. The motion recounted that IDHS counsel had sent Pierce’s counsel letters on August 10, 2005 and September 16, 2005 requesting the overdue initial disclosures but had not received a response. The district court entered an order on September 30, 2005 and directed the plaintiff to file a response by-October 14, 2005. Four days after the due date, Pierce’s counsel filed a notice that it had served its initial disclosures on IDHS.
IDHS later filed a motion to compel overdue responses to the defendant’s interrogatories and requests for production of documents. The district court denied the motion without prejudice based on an understanding that counsel would provide responses within thirty days. Two months later, the plaintiff still had not produced the documents, so IDHS filed a second motion to compel on June 26, 2006. Pierce’s counsel requested additional time to respond, and the district court allowed until September 1, 2006 for the plaintiff to respond to IDHS’s discovery requests and until September 15, 2006 for IDHS to depose Pierce. The court stated that no further fact discovery would be allowed. When IDHS still did not receive the discovery responses, it moved for sanctions on September 12, 2006. As a result, the circumstances of the case support the district court’s enforcement of the local rule.
At the least, in light of the failure to file a response on time, the district court could have deemed IDHS’s statement of undisputed facts admitted and then determined whether summary judgment was warranted as a matter of law. See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). Our review of whether summary judgment is appropriate as a matter of law looks at the record de novo. Peirick v. Ind. Univ.—Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 687 (7th Cir.2007). In this case, summary judgment would have been warranted based on the IDHS’s statement of undisputed facts.
A hostile work environment requires that the plaintiff show, among other things, that the conduct was “severe or pervasive” enough to create a hostile work environment. Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir.2004). The most egregious incidents alleged in this case are that a co-worker flashed a Ku Klux Klan sign toward Pierce and that a different co-worker called him a “nigger.” Both incidents took place in 1999, four years before Pierce left IDHS, and the latter occurred in a park while the coworker was not working. These actions were deplorable. Nonetheless, isolated incidents like these involving other co-workers do not rise to the level of environments we have deemed hostile. See, e.g. Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 552 (7th Cir.2002) (isolated statements by co-worker, including one use of word “nigger,” did not rise to the level of objectively hostile environment). Pierce does point to other comments referencing race: (1) in 1994, one of his co-workers commented that all blacks look alike; (2) in 1994, Pierce heard two racist jokes in the smoke room; (3) in 1994, a co-worker commented that he was glad that the school was hiring more blacks; (4) at a cultural diversity workshop on October 6, 1995, the word “nigger” was used as part of the presentation; and (5) in March or April of 1996, a co-worker told Pierce that her husband worked at Western Illinois Correctional Center and she feared for his safety because he had to work with African-American inmates in the barber shop. Many of these comments, however, were not directed at Pierce. See Peters, 307 *32F.3d at 552 (impact of “second-hand” harassment not as great as harassment directed at the plaintiff). None involved a supervisor. Cf. Cerros v. Steel Technologies, Inc., 398 F.3d 944 (7th Cir.2005) (reversing grant of summary judgment for defendant where supervisors and co-workers subjected plaintiff to direct and highly racial epithets, co-workers openly advocated the Ku Klux Klan, and there was racially-motivated graffiti in bathroom). All told, the incidents that took place over a ten-year period do not rise to the level of an objectively hostile work environment. See Peters, 307 F.3d at 552. Summary judgment was therefore proper as a matter of law.
III. CONCLUSION
The district court’s grant of summary judgment is affirmed.
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11-05-2022
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ORDER
This case arose when Donna Flieschli asked the government to return a number of items that had been seized in conjunction with a prosecution against her husband, Joseph. She sought sanctions against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) after it failed to do so, but the district court refused to take that step. Flieschli did not appeal from that order; instead, she filed a motion to reconsider, which the district court also denied. The latter ruling is the only one now before us. Flieschli has suggested no reason, however, why the district court abused its discretion by standing firm; instead, she has attempted belatedly to raise arguments that she could have presented had she filed a timely appeal from the underlying order. We therefore affirm.
I
For years, Flieschli has struggled with federal authorities to recover an arsenal of firearms. In 1998, agents from the Bureau seized numerous firearms, explosives, destructive devices, and ammunition from the home she shared with her husband, Joseph Flieschli, and from Joseph’s business. As a convicted felon, Joseph was prohibited from possessing firearms. See 18 U.S.C. § 922(g)(1).
After Joseph’s conviction for possession of a bevy of firearms in 2003, see United States v. Fleischli, 305 F.3d 643 (7th Cir.2002), cert. denied, 538 U.S. 1001, 123 S.Ct. 1923, 155 L.Ed.2d 828 (2003), the Bureau filed a civil complaint seeking forfeiture of various firearms, explosives, and ammunition. Donna Flieschli, proceeding pro se, answered the Bureau’s complaint and opposed forfeiture. Ruling on the Bureau’s complaint in December 2003, the district court entered a forfeiture order specifying 33 items forfeited to the United States and 29 items that were not forfeited. Flieschli claims that the nonforfeited items had a value of $76,000. Of the 29 nonforfeited items, only six remained in the Bureau’s possession at the time of the court’s order. The Bureau says that it had destroyed 23 items without notifying the court, although we are noi told when the destruction occurred.
Unaware at the time of the forfeiture order that the Bureau had destroyed most of the nonforfeited property listed in the district court’s order, Flieschli embarked on a three-year quest to recover everything. Flieschli first appealed the forfeiture order to this court; the order was affirmed. United States v. Miscellaneous Firearms, Explosives, Destructive Devices, & Ammunition, 376 F.3d 709 (7th Cir.2004), cert. denied, 544 U.S. 1019, 125 S.Ct. 1999, 161 L.Ed.2d 859 (2005). Then *34Flieschli moved the district court to set aside the judgment of forfeiture for lack of subject matter jurisdiction, but the district court denied that motion. United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition, 399 F.Supp.2d 881, 882 (C.D.Ill.2005).
Next, Flieschli wrote to the Bureau demanding the return of the nonforfeited items. Without informing Flieschli that it had already destroyed some nonforfeited items, the Bureau directed a field officer to return all her nonforfeited property. More than a year later, the Bureau returned one item (an ammo drum). Six months later, the Bureau returned five more items. At that time, it included a notation on a receipt disclosing that six identified items in the nonforfeited group had been destroyed. The notation did not say anything about the other 17 nonforfeited items.
Nearly three years later, in 2008, Flieschli asked the district court to find the Bureau in contempt and to sanction it for failing to return her nonforfeited property in accordance with the court’s order. Flieschli also sought compensation for the fair-market value of property that the Bureau was unable to return. The Bureau offered two reasons why sanctions were inappropriate. First, it maintained that it had lawfully destroyed any unreturned property because that property was unsafe to move or store. See 18 U.S.C. § 844(c)(2) (permitting the government to destroy explosive material subject to forfeiture before a “credible witness” if it is impracticable or unsafe to remove or store the items). To substantiate this argument, the Bureau submitted the receipt containing the notation that the Bureau had destroyed six items for safety or storage reasons, but it submitted nothing to authenticate that notation, nor did it offer any evidence about the other 17 unaccounted-for items. Second, the Bureau argued that Flieschli had a statutory remedy available to compensate her for the destroyed property. See 18 U.S.C. § 844(c)(3) (stating that any person having an interest may apply to the Attorney General for reimbursement within 60 days after any destruction under 18 U.S.C. § 844(c)(2)).
In light of the Bureau’s revelation that it had already destroyed all the unreturned property, Flieschli asked for leave to file a reply brief. In her proposed reply, Flieschli contends that sanctions were appropriate as compensation for the considerable time and effort that she has expended in what appears to be a futile effort to recover property that has already been destroyed. The district court denied leave to file a reply and denied her request for sanctions against the Bureau. It ruled that the Bureau had lawfully destroyed all of the unreturned, nonforfeited items, and that sanctions were inappropriate because Flieschli had not pursued an available statutory remedy.
At this point, Flieschli made a critical mistake. Rather than appeal the district court’s ruling, Flieschli did nothing for a month and then filed a motion to reconsider. In that motion, she argued that the district court erroneously had concluded that the property was destroyed and that sanctions were inappropriate. Flieschli also demanded compensation for the time and expense that the Bureau could have spared her had it timely notified her of the property’s destruction. The district court denied her motion on October 1, 2008. On November 25, 2008, within 60 days of the ruling on the motion to reconsider but nearly four months after the sanctions ruling, Flieschli appealed the district court’s denial of her motion to reconsider.
II
Flieschli’s motion to reconsider was filed more than ten days after entry of the *35district court’s order denying sanctions. Therefore, we treat the motion under Federal Rule of Civil Procedure 60(b). Fed. R.App. P. 4(a)(4)(vi); Tolano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir.2001). We lack jurisdiction to review the underlying sanctions decision because Flieschli filed no timely appeal from that decision. Easley v. Kirmsee, 382 F.3d 693, 696 n. 3 (7th Cir.2004); Del Carmen v. Emerson Elec. Co., 908 F.2d 158, 161 (7th Cir.1990). Had she appealed that order, Flieschli could have argued that the district court clearly erred in finding that all the nonforfeited items were lawfully destroyed. She also could have taken issue with the court’s legal finding that she had an available statutory remedy for the unreturned property.
But Flieschli filed only a Rule 60(b) motion, and therefore she must demonstrate in this appeal that the district court abused its discretion in denying her motion. See Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir.2005). Relief under Rule 60(b) is an extraordinary remedy granted only in exceptional circumstances. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.2006); McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir.2000). We review a district court’s ruling on a Rule 60(b) motion only for abuse of discretion. Eskridge v. Cook County, 577 F.3d 806, 808 (7th Cir.2009).
In order to enforce the jurisdictional time periods for taking an appeal, we have emphasized that Rule 60(b) cannot be used as a device that simply extends the time for making arguments that would have been available on a direct appeal. Stoller v. Pure Fishing, Inc., 528 F.3d 478, 480 (7th Cir.), cert. denied, - U.S. --, 129 S.Ct. 609, 172 L.Ed.2d 457 (2008); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir.2000). In this case, moreover, we would review the district court’s decision denying sanctions deferentially and would set it aside only for abuse of discretion, Bailey v. Roob, 567 F.3d 930, 933 (7th Cir.2009). This makes Flieschli’s challenge even more formidable because, in denying her Rule 60(b) motion, the district court acted with “discretion piled upon discretion.” Bakery Mach. & Fabrication, Inc. v. Traditional Baking Inc., 570 F.3d 845, 848 (7th Cir.2009) (citation omitted).
Flieschli has styled her argument as an appeal from the denial of her Rule 60(b) motion, but in substance she simply focuses on two alleged errors in the district court’s ruling on her motion for sanctions. Flieschli first contends that she had no statutory remedy under 18 U.S.C. § 844 because she was not given notice that her property was destroyed until the government’s reply to her motion for sanctions, which was more than 60 days from the day of destruction. See 18 U.S.C. § 844(c)(3). But this is an argument that she was free to make on direct appeal. Therefore, the district court acted within its discretion in rejecting it as a basis for relief under Rule 60(b). Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.2002).
Flieschli’s second argument shares the same fate. She argues that the government misrepresented to the district court that the Bureau had destroyed the nonforfeited items. See FedR.CivP. 60(b)(3). She explains that although the government claimed in its response to the motion for sanctions that the Bureau had destroyed the property, the Bureau’s directive to a field officer in 2004 to return all the non-forfeited items demonstrates that it had not done so. This argument fails, too, however as a basis for relief under Rule 60(b). She discovered this asserted fabrication in time to use it as a basis for relief on direct appeal. Therefore, the district court acted reasonably in denying her Rule 60(b) motion on this basis as well. Gleash, *36308 F.3d at 761. Rule 60 authorizes relief only if the claimed misrepresentation affected the party’s ability to present her case on direct appeal, and that did not occur here. Ty Inc. v. Softbelly’s, Inc., 353 F.3d 528, 536 (7th Cir.2003).
Last, Flieschli also demanded compensation for the time and expense that the Bureau could have spared her had it advised her sooner that her property was destroyed. Rule 60(b), however, is not the proper avenue for pursuing damages for a claim of government neglect. See, e.g., Delay v. Gordon, 475 F.3d 1039, 1044-45 (9th Cir.2007); United States v. One Toshiba Color Television, 213 F.3d 147, 158 (3d Cir.2000); United States v. One Hundred Nineteen Thousand Nine Hundred Eighty Dollars, 680 F.2d 106, 107-08 (11th Cir.1982); United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356 (5th Cir.1972).
Accordingly, we AFFIRM the district court’s denial of the motion to reconsider.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8475265/
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ORDER
In September 2007, Timothy A. Brown asked his girlfriend, Annie Bell, to rent a car for him to drive to Las Vegas, NV, so that he could shop for a dump truck for his business. Bell used her credit card to rent a sport-utility vehicle (“SUV”) from a car rental company in Austintown, OH. Bell gave Brown the keys to the automobile and permission to drive it to Las Vegas, even though she was the only authorized driver listed in the rental agreement. Brown drove to Las Vegas and then to California. On his return trip to Ohio, Illinois State Police Trooper Andrew Fratzke pulled Brown over for speeding. Brown presented the trooper with his driver’s license and the rental agreement for the SUV and told him that he was on his way back from Las Vegas. Trooper Fratzke returned to his squad car and ran a check on Brown’s license and the automobile’s plates. The license check revealed that Brown had previous drug offenses. Trooper Fratzke prepared a written warning for the speeding infraction and walked back to the SUV. He then asked Brown to step to the front of the vehicle to sign the warning, after which Trooper Fratzke returned Brown’s driver’s license and the rental agreement. During the next minute, Trooper Fratzke commented that it didn’t make sense that Brown would travel from Ohio to Las Vegas, stay only a day or two, and then drive back. He also asked Brown if he had any illegal narcotics in the automobile (Brown said he did not) and requested permission to walk Viper, a drug-detection dog, around the perimeter of the SUV. After receiving Brown’s consent,1 Trooper Fratzke began walking Viper around the automobile. Two minutes later, Viper alerted to the scent of narcotics at the rear bumper of the SUV. Trooper Fratzke then searched the back of the vehicle, found seventeen kilos of cocaine and one pound of marijuana, and arrested Brown.
Subsequently, a grand jury indicted Brown for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Brown filed a motion to suppress the evidence discovered during the traffic stop, which the district court denied following a hearing. The court held that Brown lacked “standing” to prosecute the motion. Alternatively, assuming Brown had “standing,” the court held that the length of his detention was reasonable and found that he had consented to the dog sniff. Brown then entered a guilty plea to the charged offense but reserved his right to appeal the denial of his motion to suppress. The district court sentenced Brown to 240 months’ imprisonment. Brown appeals the district court’s denial of his motion to suppress.
*38On appeal, Brown argues that the district court erred in holding that the length of his detention by Trooper Fratzke was reasonable and in finding that he consented to the dog sniff.2 In examining a district court’s ruling on a motion to suppress, we review its legal conclusions de novo and its factual determinations for clear error. United States v. Booker, 579 F.3d 835, 838 (7th Cir.2009).
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The stop of an automobile is reasonable for Fourth Amendment purposes, however, where “police have probable cause to believe that a traffic violation has occurred.” Id. at 810, 116 S.Ct. 1769.
Brown does not dispute that Trooper Fratzke had probable cause to stop him for speeding. Rather, he contends that the purpose of the stop was completed when Trooper Fratzke issued the written warning and returned to him his driver’s license and the rental agreement. He argues that he then was illegally detained when Trooper Fratzke proceeded to comment on the unusual nature of his trip to Las Vegas, asked whether there were any illegal narcotics in the car, and requested permission to conduct a dog sniff. But our opinion in United States v. Childs, 277 F.3d 947 (7th Cir.2002) (en banc), dooms that argument. In Childs, we observed that because traffic stops based on probable cause are arrests, the Fourth Amendment does not mandate the release of such arrestees at the earliest possible moment. 277 F.3d at 953-54. Rather, the reasonableness of the detention is the constitutional touchstone, and police properly may ask crime-detecting questions that create little or no inconvenience to the arrestee, even if such queries are unrelated to the purpose of the stop and are unsupported by any suspicion. Id. at 954 (citing Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). Here, the video of the stop shows that Trooper Fratzke’s comment about the peculiarity of Brown’s quick trip to Las Vegas, question about whether there were illegal narcotics in the SUV, and request to conduct a dog sniff all transpired in less than one minute after he issued the warning to Brown and returned *39his driver’s license and the rental agreement. Brown’s detention was reasonable because those questions were minimally (if at all) inconvenient and only briefly extended the length of the stop. Accordingly, the detention did not violate the Fourth Amendment.
Brown also contends his Fourth Amendment rights were violated because he never consented to extension of his detention so that Trooper Fratzke could conduct the dog sniff. Trooper Fratzke, however, testified at the suppression hearing that Brown did give his consent. And on the video of the stop, although barely discernible, Brown’s response to Trooper Fratzke’s consent request is in the affirmative. In addition, Trooper Fratzke’s words following Brown’s response are clearly audible and consistent with Brown having consented.3 Hence, we see no clear error in the district court’s finding that Brown consented to the dog sniff and the concomitant additional detention. The drug-detection dog’s alert to narcotics provided probable cause to search the SUV. United States v. Carpenter, 406 F.3d 915, 916 (7th Cir.2005). Therefore, the drugs Trooper Fratzke found in the SUV were discovered pursuant to a lawful search. Accordingly, the district court properly denied Brown’s motion to suppress. AFFIRMED.
. Brown claimed in the district court and repeats on appeal that he did not consent to the sniff.
. Brown also contends that the district court erred in concluding he lacked “standing" to bring the motion to suppress. (We note that the Supreme Court has rejected the use of the standing rubric to describe a person’s legitimate expectation of privacy in the place searched. Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citing Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978))). There is a division among the courts of appeals regarding whether the driver of a rental vehicle, who is not listed as an authorized driver on the rental agreement but has the permission of the authorized driver to use the vehicle, has a legitimate expectation of privacy in the automobile that is protected by the Fourth Amendment. Compare United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994) (no), United States v. Boruff, 909 F.2d 111, 117 (5th Cir.1990) (no), and United States v. Obregon, 748 F.2d 1371, 1375 (10th Cir.1984) (no), with United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir.2006) (yes), and United States v. Best, 135 F.3d 1223, 1225 (8th Cir.1998) (suggesting the answer is "yes”); see also United States v. Smith, 263 F.3d 571, 586 (6th Cir.2001) (eschewing a bright-line approach in favor of a totality-of-the-circumstances analysis). But we need not choose a side on this issue because even assuming that Brown did have a legitimate expectation of privacy in the SUV, we ultimately conclude that the search of the SUV was lawful.
. Brown does not explicitly argue that his consent, even if given, was involuntary under the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Even if his contention that he did not consent could be understood to raise that argument, our review of the entire record reveals no basis for such a finding.
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ORDER
Federal prisoner John Perotti lost a total of 80 days’ good time after prison authorities concluded that he fought with another inmate and, in a separate incident, swore at a staff member. He petitioned for a writ of habeas corpus, see 28 U.S.C. § 2241, challenging both disciplinary decisions, and the district court dismissed the petition. We affirm the judgment.
The first incident occurred in November 2007. Perotti received an incident report charging him with fighting and possessing a weapon. See 28 C.F.R. § 541.13, tbl. 3, Codes 201,104. The guard who drafted the incident report was not an eyewitness to the altercation, but a surveillance camera captured on tape the confrontation between Perotti and the other inmate. The footage, according to the guard’s report, shows the other inmate start the fight by swinging a broomstick at Perotti, who responded with a punch to the face. According to the guard, Perotti then gained control of the broomstick, tossed it over a railing to the floor below, and, after a brief retreat to his cell, chased his antagonist with a shank (a homemade knife) in each hand. When Perotti turned his back momentarily, the other man threw a trash can at him. Another chase ensued, and, according to the reporting guard, Perotti managed to dispose of the shanks in a shower stall just before staff broke up the fight. Perotti suffered bruises, a fracture to his left arm, and lacerations requiring stitches above each eye.
The following month Perotti appeared before a disciplinary hearing officer, who concluded that Perotti had committed the charged acts and sanctioned him with the *41loss of 27 days of good time for fighting and another 40 days for possessing a weapon. Although a staff member had been appointed to represent Perotti at the hearing, the employee did not meet with him or help him procure witnesses. And neither Perotti nor the representative was permitted to review the surveillance footage. Perotti pointed out these alleged deficiencies in an administrative appeal, and a rehearing was ordered.
At the rehearing in March 2008, Perotti insisted that he acted in self-defense and that the alleged shanks were actually rolled-up magazines. This time his staff representative (a different employee than before) was allowed to watch the surveillance footage, though Perotti was not. By the time of the rehearing, however, the three witnesses Perotti had hoped to call had been released to halfway houses. Perotti complains that his representative would not contact them for him and that prison administrators refused to produce them for the hearing or give him their full names and addresses so that he could obtain written statements from them. The healing officer again concluded that Perot-ti had committed the alleged violations. The officer noted in his decision that he had watched the surveillance footage and observed Perotti holding in his right hand a sharpened object roughly seven inches long while trying to stab the other inmate in the face and torso. The hearing officer again revoked a total of 67 days of good time.
In the meantime, Perotti had been charged in February 2008 with insolence after allegedly swearing at a counselor. See 28 C.F.R. § 541.13, tbl. 3, Code 312. A different hearing officer conducted the proceedings on that infraction immediately after the rehearing on the charges of fighting and possession of a weapon. Perotti’s staff representative for the fighting and weapons charges did not realize that she was also assigned to represent him on the insolence charge. She thus had not prepared for the latter hearing, but the hearing officer refused to postpone the proceeding. The hearing officer also refused Perotti’s request that he recuse himself because his wife, another prison employee, had previously reported Perotti for insolence, a charge which Perotti says was dismissed “as being without foundation.” The hearing officer found Perotti guilty and revoked an additional 13 days of good time.
We review de novo the district court’s denial of Perotti’s § 2241 petition. See Parsons v. Pitzer, 149 F.3d 734, 736 (7th Cir.1998). Federal inmates have a liberty interest in their earned good time, and Perotti thus was entitled to due process before any time could be revoked. See Brooks-Bey v. Smith, 819 F.2d 178, 180 (7th Cir.1987). Due process in this context requires that the prisoner receive advance written notice of the charges, an opportunity to present evidence to an impartial decisionmaker, and a written explanation for the discipline that is supported by “some evidence.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 564, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Focusing first on the fighting/weapons charges, Perotti argues that he was denied due process because he could not make use of the surveillance footage nor could he contact the three witnesses in the halfway houses. Although his staff representative watched the videotape, Perotti asserts that she was not allowed to discuss the footage at the hearing and he was not allowed to question her about it. The missing inmates, he says, would have corroborated his claim of self-defense.
*42Perotti is mistaken, however, about the extent of his right to have direct access to evidence. A prisoner’s access to specific evidence or witnesses may be restricted if it would be “unduly hazardous to institutional safety or correctional goals,” Wolff, 418 U.S. at 566, 94 S.Ct. 2963; Piggie v. McBride, 277 F.3d 922, 924 (7th Cir.2002), or when the evidence or testimony would be irrelevant or repetitive, Scruggs v. Jordan, 485 F.3d 934, 939-40 (7th Cir.2007); Pannell v. McBride, 306 F.3d 499, 503 (7th Cir.2002). The evidence that Perotti wanted would not have helped his claim of self-defense. No one disputes that the other inmate started the fight by swinging a broomstick at Perotti. And Perotti has never denied that he chased his antagonist after knocking the broomstick out of reach; he did not try instead to alert a guard or to defuse the situation in some other way. The hearing officer observed the entire sequence of events as captured in the footage and concluded that, no matter who started the fight, Perotti’s subsequent actions were not entirely defensive. Moreover, even if Perotti had acted only in self-defense, the hearing officer still would have been within his discretion to sanction Perotti for fighting because there is no constitutional right to self-defense in a prison setting. See Scruggs, 485 F.3d at 938-39; Rowe v. DeBruyn, 17 F.3d 1047, 1052-53 (7th Cir.1994).
Perotti’s challenges to the loss of good time on the charge of possessing a weapon are also unavailing. He has presented a simple credibility question: was the hearing officer compelled to find, as Perotti insisted, that Perotti held only rolled-up magazines, or was the hearing officer entitled to believe what he saw in the surveillance video, which depicted Perotti chasing his antagonist while trying to stab him with what appeared to be a sharp, seven-inch object. A hearing officer may resolve competing stories so long as some evidence supports the decision, Johnson v. Finnan, 467 F.3d 693, 695 (7th Cir.2006), and this footage was more than enough to support the conclusion that Perotti possessed a weapon.
Perotti thinks that the hearing officer might have decided the question differently if Perotti had been allowed to make greater use of the video, but he has never explained how this is so, especially given the fact that the hearing officer personally viewed the videotape. We cannot see how permitting Perotti to question his staff representative about the same video would have changed anything. See White v. Ind. Parole Bd., 266 F.3d 759, 768 (7th Cir.2001).
Next, although Perotti alleges in his § 2241 petition that the three halfway-house witnesses would have testified that Perotti “did not have two knives during the altercation,” that was not his contention during the administrative proceedings. Until he filed his petition, his position was that the witnesses would testify that he acted in self-defense. We are troubled by the government’s contention that witnesses in BOP custody need not be made available, either for live testimony or to produce written statements, simply because they have been assigned to halfway houses. See 28 C.F.R. § 541.17(c) (instructing that hearing officer should call witnesses who are “reasonably available,” including those from outside institution, and request written statements from unavailable witnesses with relevant information); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 762 n. 9 (3d Cir.1996) (resolving case on other grounds but expressing discomfort with government’s characterization of witnesses transferred to other facilities as categorically “unavailable”); Forbes v. Trigg, 976 F.2d 308, 317 (7th Cir.1992) (explaining that rules categorically barring certain classes of witnesses are unconstitu*43tional). But the extent of the government’s responsibility in that respect is not important here. Perotti may not recharacterize the nature of the proposed witnesses’ testimony to bolster his § 2241 petition, and so we need not address the issue.
That leaves Perotti’s challenges to the disciplinary hearing on the insolence charge. The district court did not address Perotti’s specific arguments about that hearing. The government invites us to remand this portion of the § 2241 petition, but we see no need for a remand, since the record is developed enough to permit review now. See Books v. Chater, 91 F.3d 972, 978 (7th Cir.1996) (explaining that, if correct resolution of appeal is clear, remand needlessly prolongs case without contributing to correct outcome); DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir.1990) (same).
Perotti’s primary challenge to the insolence proceeding is his allegation that the hearing officer was biased against him. The reason, Perotti contends, is that the officer’s wife, another prison employee, had previously filed an insolence charge against Perotti that was dismissed as unfounded. (Perotti further asserted in his § 2241 petition that the officer’s wife had been “reprimanded” for filing a false disciplinary charge, but he did not make that allegation in his administrative appeal and has abandoned that characterization before this court.) An inmate facing disciplinary charges has the right to an impartial decisionmaker. Wolff, 418 U.S. at 571, 94 S.Ct. 2963. But “the constitutional standard for impermissible bias is high,” Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir.2003), and an adjudicator is entitled to a presumption of “honesty and integrity” absent clear evidence to the contrary, see Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Due process requires disqualification of a decisionmaker who was directly or substantially involved in the underlying incident, Gaither v. Anderson, 236 F.3d 817, 820 (7th Cir.2000), and we have assumed that a decisionmaker might likewise be impermissibly biased if his spouse is a crucial witness in the proceeding, see Eads v. Hanks, 280 F.3d 728, 729 (7th Cir.2002). A hearing officer is not automatically deemed biased, however, simply because he adjudicated or was involved in a previous disciplinary charge against the prisoner. See Piggie, 342 F.3d at 666-67; Pannell, 306 F.3d at 502. And if his own involvement in a prison disciplinary matter would not have disqualified the hearing officer, neither would his wife’s.
Perotti also asserts that he was denied effective assistance of his staff advocate because she was unable to prepare properly for the insolence hearing. A BOP regulation, 28 C.F.R. § 541.17(b), provides that a hearing officer “shall afford a staff representative adequate time to speak with the inmate and interview requested witnesses where appropriate.” But the regulation gives the hearing officer discretion to determine when advance investigation by a staff representative is necessary, and there is no evidence that the officer’s decision to proceed with Perotti’s hearing in the absence of such investigation was improper. Perotti has not alleged, for example, that he was prevented from gathering evidence on his own prior to the hearing, nor has he identified any specific witnesses he would have liked the staff representative to consult or explained what they would have said.
Finally, we note that Perotti alleged in his petition that he never received a written decision disposing of the insolence charge, and we do not see any such document in the record. Wolff requires the prison authorities to give such a statement *44to the prisoner. 418 U.S. at 564-65, 94 S.Ct. 2963. Perotti has not pressed this issue on appeal, however, and thus we have no need to decide whether the apparent absence of the statement of reasons has any effect on Perotti’s case.
Affirmed.
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*45ORDER
Carl DeSimone, formerly a civilly committed patient at the Wisconsin Resource Center, sued WRC employees under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000ec-1(a), and under 42 U.S.C. § 1983 for violations of the First Amendment as incorporated by the Fourteenth Amendment. The district court granted summary judgment against DeSimone, and we affirm.
The facts underlying DeSimone’s lawsuit are largely undisputed. In early 2006, he informed WRC that he had begun practicing a religion called Yahwism, which he understands to require adherents to “separate” themselves from the world of sin, a feat sometimes accomplished by living wholly apart from others. Living apart from others was impossible in the care of WRC, but DeSimone believed he could maintain a separate realm of thought by wilting in journals through use of a code (to prevent fellow patients from reading his entries and learning his secrets). The record shows that DeSimone had been maintaining encoded journals as early as 1997, even before he had embraced Yahwism. DeSimone obtained the codes relevant to this lawsuit from Internet printouts provided by a teacher and a social worker who agreed to help him pursue his interest in the mythical city of Atlantis. One code was an alphabet—“Atlantean”— designed to accompany a language constructed for the Disney film Atlantis: The Lost Empire. Another was “Lingua Anquietas,” an alphabet created for a fictional race of “Ancients” in the television shows Stargate SG-1 and Stargate: Atlantis. DeSimone learned how to transliterate English words into the fictitious alphabets.
In early 2008 a routine search of DeSimone’s cell revealed two journals, two notepads, a letter, and seven loose sheets of paper, all containing writing in DeSimone’s chosen codes. Staff confiscated the journals and loose paper, gave DeSimone a written explanation that encoded writing was considered a security risk and therefore deemed contraband, and forbade him from continuing to write in code. DeSimone unsuccessfully filed internal grievances seeking the return of his papers and the lifting of the ban.
He then sued in federal court, seeking monetary damages and injunctive relief. First, DeSimone claimed that WRC violated RLUIPA by banning code and thereby increasing the likelihood that any patients who stole his journals could learn his thoughts and prayers—a scenario that, he said, made it impossible to follow the religious commandment to live separately from others. Second, DeSimone argued that the ban of code, for the same reasons, violated his First Amendment right to the free exercise of his religion.
The district court granted summary judgment for WRC, ruling that DeSimone had not produced evidence of a substantial burden on his religious exercise as required by RLUIPA and, in the alternative, that WRC had demonstrated that it pursued the least restrictive means of furthering its compelling interest in institutional security. The court further ruled that, because “RLUIPA provides more generous protection than the First Amendment,” DeSimone could not possibly succeed on his constitutional claim.
On appeal, DeSimone argues that the district court erred by granting summary judgment on the RLUIPA claim because the rules preventing him from using his favored codes substantially burdened his religious exercise. He also challenges the court’s alternative rationale that the ban furthered a compelling government interest or constituted the least restrictive means.
*46RLUIPA forbids institutions that receive federal funds from substantially burdening patients’ exercise of religion—even by rules of general applicability—unless the burden is the least restrictive means of furthering a compelling government interest. See 42 U.S.C. § 2000cc-l(a); Cutter v. Wilkinson, 544 U.S. 709, 715, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005); Ortiz v. Downey, 561 F.3d 664, 670 (7th Cir.2009). A substantial burden exists only where a government action “bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.” Nelson v. Miller, 570 F.3d 868, 878 (7th Cir.2009) (quoting Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.2003)). Only upon plaintiffs’ showing of a substantial burden on their religious exercise will the evidentiary burden shift to the institution, which must then show that the challenged rule is the least restrictive means of pursuing a compelling government interest. See Koger v. Bryan, 523 F.3d 789, 796 (7th Cir.2008).
As the district court recognized, DeSimone’s RLUIPA claim fails because he produced no evidence of a substantial burden on his religious exercise. DeSimone says that WRC’s ban on encoded writing infringes upon his religious exercise—that of keeping his thoughts “separate” from sinners—because other patients might obtain and read his journals, but speculation of this sort does not constitute the sort of evidence necessary to establish a substantial burden. See Borzych v. Frank, 439 F.3d 388, 390 (7th Cir.2006) (noting the insufficiency of a plaintiffs “unreasoned say-so” to create a triable issue). Thus, the district court did not err in granting summary judgment on DeSimone’s RLUIPA claim.
Finally, DeSimone argues that the district court erred when it ruled against him on his First Amendment claim, for essentially the same reasons he says it erred on the RLUIPA claim. Although the First Amendment right to exercise one’s religion extends to institutionalized persons, Ortiz, 561 F.3d at 669, a plaintiff must show a violation of that right by demonstrating a substantial burden on religious exercise; indeed, RLUIPA’s “substantial burden” test was imported from First Amendment jurisprudence. See Nelson, 570 F.3d at 878 n. 5; Lovelace v. Lee, 472 F.3d 174, 198 n. 8 (4th Cir.2006). DeSimone’s failure to establish a substantial burden on his religious exercise therefore dooms not only his RLUIPA claim, but his First Amendment claim as well.
Accordingly, the judgment is AFFIRMED.
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ORDER
Cedric Hayes was convicted of possessing crack cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), and was sentenced to 46 months’ imprisonment. After the sentencing guidelines were amended retroactively to reduce the penalties for crack offenses, Hayes, through counsel, moved under 18 U.S.C. § 3582(c)(2) for a reduced sentence. The district court concluded that he was eligible for, but not deserving of, a lower sentence and denied the motion.
Hayes filed a notice of appeal, but his appointed lawyer has concluded that the case is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Hayes to respond to counsel’s motion, though he did not. See Cir. R. 51(b). Our review is limited to the potential issue identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
The revised offense levels for crack offenses lowered the upper end of the imprisonment range from the 46 months Hayes received to 37 months. But the district court explained that Hayes’s pattern of drug dealing and his criminal history, not the small amount of crack involved in the offense of conviction, had motivated the sentence at the high end of the range, and given these factors the court did not believe that a lower sentence was appropriate. Counsel considered arguing that this decision was an abuse of discretion but recognized that it would be frivolous to do so. A district court has discretion to deny a § 3582(c)(2) motion even when a retroactive amendment to the guidelines would lower the defendant’s imprisonment range, see United States v. Young, 555 F.3d 611, 615 (7th Cir.2009); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir.1999), and that discretion is -not abused when a court declines to lower a sentence because of the danger that early release would present to the community, see U.S.S.G. § 1B1.10 cmt. n. 1(B)(ii); United States v. Johnson, 580 F.3d 567, 570 (7th Cir.2009); United States v. Borden, 564 F.3d 100, 103-04 (2d Cir.2009); United States v. Johnson, 564 F.3d 419, 424 (6th Cir.), cert. denied, — U.S. -, 130 S.Ct. 318, 175 L.Ed.2d 210 (2009).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
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ORDER
Brian McMutuary helped two accomplices rob the bank where he worked of $277,000. McMutuary had access to the vault and knew when currency shipments arrived, so the district court assessed a 2-level upward adjustment for abuse of a position of trust. See U.S.S.G. § 3B1.3. The court sentenced McMutuary to a total of 195 months’ imprisonment, and we affirmed the judgment on direct appeal. See United States v. McMutuary, 217 F.3d 477 (7th Cir.2000). McMutuary later filed a motion under 18 U.S.C. § 3582(c)(2) for a reduced sentence; he claimed that after Amendment 580, which revised the commentary to § 3B1.3, he no longer would be subject to the increase for abuse of a position of trust. The district court concluded that it lacked authority to grant relief, and McMutuary appeals that decision.
Amendment 580 took effect in 1998 after McMutuary’s sentencing. The amendment resolved a circuit split and adopted the majority view that defendants who deceived their victims by pretending to hold positions of trust they did not occupy are equally deserving of the 2-level increase. See U.S.S.G. app. C, vol. 2 at 12-13 (2003) (Amendment 580). The Sentencing Commission also used the opportunity to sharpen the language of the existing commentary; one change was to say that § 3B1.3 “does not”—instead of “would not”—apply to an ordinary bank teller. Id. The substitution of ivould for does, says McMutuary, made the adjustment inapplicable to him.
That contention is frivolous, but also irrelevant. The Sentencing Commission alone decides which amendments will apply retroactively, see 28 U.S.C. § 994(u), and the Commission exercises that power by listing retroactive amendments exhaustively in U.S.S.G. § lB1.10(c). Braxton v. United States, 500 U.S. 344, 348, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991); United States v. Cunningham, 554 F.3d 703, 708 (7th Cir.2009). Amendment 580 is not listed, and thus McMutuary cannot benefit from it.
AFFIRMED.
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ORDER
Jerome M. Wilson, a felon, moved to suppress a gun and drugs that were found in his possession during a traffic stop. When that failed, he pleaded guilty to firearm possession, and to possession with intent to distribute marijuana. See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 841(a)(1). He was sentenced to 112 months’ imprisonment for the gun count, to be served concurrently with 60 months’ imprisonment for the drug count. Wilson filed a notice of appeal, but his appointed counsel moves to withdraw because he does not believe there are any nonfrivolous issues to raise. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wilson did not accept our invitation to respond to his lawyer’s submission, see Cir. R. 51(b), so we limit our review to the potential issues identified in counsel’s facially sufficient supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
In September 2007 Sergeant Craig Rios stopped Wilson for speeding. According to Rios’s testimony at the suppression hearing, he smelled burnt marijuana when he approached Wilson’s car. Wilson gave Rios his driver’s license, which Rios used to perform a routine background check that revealed prior convictions for drug possession and disarming a police officer. *50Rios called for a drug dog, which was promptly brought in. After the dog detected the likely presence of illegal drugs, officers searched Wilson and in his shoe found about 20 grams of marijuana and some plastic bags of the kind often used by drug dealers. Another officer testified to finding an already-smoked “blunt” in the passenger console. A full search of the car revealed a handgun, ammunition, and more than 800 grams of marijuana.
At the suppression hearing, Wilson conceded the validity of the traffic stop but insisted that there was neither a “blunt” nor a marijuana smell, and that the police therefore violated the Fourth Amendment by detaining him while they waited for the dog. The district court credited the officers’ testimony and denied the suppression motion, explaining that the marijuana smell provided Sergeant Rios with probable cause to search the vehicle for drugs. Wilson subsequently entered a conditional guilty plea that preserved the suppression issue.
At sentencing the district court grouped the charges and calculated a total offense level of 26, which took into account both an upward adjustment for obstruction of justice and a downward adjustment for acceptance of responsibility. See U.S.S.G. §§ 3C1.1, 3D1.2(c), 3El.l(b). The court’s calculation relied upon the adjusted offense level for the firearm charge, which was higher (26) than the one for the drug charge (10). See U.S.S.G. § 3D1.3(a). Wilson’s criminal history category was V, yielding a guidelines range of 110-137 months. The district court selected 112 months, explaining that Wilson’s need for deterrence warranted a sentence slightly above the bottom of his guidelines range.
Counsel first considers whether Wilson could challenge the court’s decision not to grant his suppression motion, either by attacking Rios’s credibility or by contesting the existence of probable cause. But neither counsel nor we can identify anything in the transcripts that would lead us to disturb the district court’s credibility determination. See United States v. Stewart, 536 F.3d 714, 720 (7th Cir.2008). And as counsel observes, a burnt marijuana smell would provide sufficient probable cause for an immediate search. See United States v. Cherry, 436 F.3d 769, 772 (7th Cir.2006) (collecting cases). Although Rios therefore could have searched the car right away, there was nothing unreasonable about detaining Wilson until the dog could confirm or dispel his suspicion. See United States v. Martin, 422 F.3d 597, 602 (7th Cir.2005).
Next, counsel observes that Wilson does not wish to withdraw his conditional guilty plea, and thus rightly omits any discussion of the plea’s validity. See United States v. Knox, 287 F.3d 667 (7th Cir.2002).
Counsel then discusses whether Wilson might challenge five separate rulings that the district court made regarding his sentence. First, counsel asks whether Wilson could challenge the two-level adjustment for obstruction of justice, which he received for perjury. The court found that Wilson’s testimony was “knowingly false” and given in order “to mislead the Court,” and so it determined that Wilson’s false testimony was both material to the suppression motion and willful. Counsel therefore properly concludes that the district court’s findings encompass the factual predicates for a perjury charge, and that we would thus uphold the adjustment for obstruction of justice. See United States v. Savage, 505 F.3d 754, 763 (7th Cir.2007).
Second, counsel explores a potential argument that the district court engaged in “double counting” when it accounted for the firearm possession by increasing the adjusted offense level for the marijuana charge by two. See U.S.S.G. *51§ 2D1.1(b)(l). But counsel properly recognizes that no double counting took place. The district court grouped the marijuana and gun charges and then correctly used the offense level for the gun charge because it was the higher of the two. See U.S.S.G. § 3D1.S(a); United States v. Spano, 476 F.3d 476, 478 (7th Cir.2007). That made the adjusted offense level for the marijuana charge irrelevant.
Third, counsel considers Wilson’s contention that he deserved an additional reduction in offense level for assisting the authorities under § 3El.l(b). But as counsel concludes, this argument would be frivolous because the government did not exercise its discretion to file a motion seeking the decrease. See United States v. Deberry, 576 F.3d 708, 710 (7th Cir.2009).
Fourth, counsel considers whether Wilson could argue that the district court miscalculated his criminal history by accounting for a prior marijuana conviction that Wilson believed was expunged. Under § 4A1.2(j), expunged convictions based on innocence or procedural irregularity are not counted in the criminal history calculation. See Wilson v. United States, 413 F.3d 685, 688 (7th Cir.2005). But because Wilson did not show that this conviction had at all been expunged, we agree with counsel that this argument would be frivolous. .
Fifth, counsel considers whether Wilson could challenge the two-level increase under § 2K2.1(b)(4) for possession of a stolen gun because he didn’t know the gun was stolen. But counsel properly recognizes that this would be frivolous because any lack of knowledge on Wilson’s part would not foreclose application of the guideline. See § 2K2.1 cmt. n. 8(B); United States v. Statham, 581 F.3d 548, 553 (7th Cir.2009); United States v. Schnell, 982 F.2d 216, 217 (7th Cir.1992).
Finally, counsel considers generally whether Wilson could argue that his sentence was procedurally flawed or otherwise unreasonable. But as counsel recognizes, the district court calculated the range correctly, acknowledged the advisory nature of the guidelines, considered the sentencing factors listed in 18 U.S.C. § 3553(a), and adequately explained its reasoning. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Turner, 569 F.3d 637, 640 (7th Cir.2009). And because Wilson’s sentence lies within the correctly-calculated guidelines range, we would presume it reasonable. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Accordingly, we Grant counsel’s motion to withdraw and Dismiss Wilson’s appeal.
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ORDER
Julian Wyre was charged with possession with intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1). He entered into a plea agreement in which he waived his rights to appeal the conviction, his sentence, or the district court’s pretrial rulings unless they resulted from ineffective assistance of counsel or consideration of constitutionally impermissible factors. The district court sentenced him to 204 months’ imprisonment, and Wyre appealed. His appointed counsel moves to withdraw because he cannot identify any non-frivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wyre objects to counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Wyre’s response. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Wyre has told counsel that he wants his guilty plea set aside, so counsel properly begins by evaluating whether he could challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy. See Fed R.Crim. P. 11; United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Because Wyre did not move to withdraw his guilty plea in the district court, our review would be for plain error only. See United States v. Vonn, 535 U.S. *5355, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Griffin, 521 F.3d 727, 730 (7th Cir.2008). Counsel identifies only one omission during the plea colloquy: the district court did not tell Wyre that he could present evidence at trial. See Fed. R.CrimP. 11(b)(1)(E). But the judge did advise Wyre that if he went to trial he could subpoena witnesses and testify in his own defense, and the plea agreement further specified that, at trial, Wyre would be able to present witnesses and other evidence. The judge’s failure to say more is not plain error. See United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). We therefore agree with counsel that it would be frivolous to argue that the plea colloquy was deficient.
Counsel in his brief, and Wyre in his 51(b) response, also propose arguing that the plea was involuntary because Wyre’s attorney was ineffective. A challenge to the adequacy of counsel’s performance, however, is best pursued on collateral review so that a more complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
Finally, counsel considers whether Wyre could challenge his sentence, and both counsel and Wyre propose arguing that the district court erred by denying Wyre’s request at sentencing to substitute counsel. Both of these arguments are foreclosed by the appeal waiver. If the guilty plea stands, so does the waiver. United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007); United States v. Nave, 302 F.3d 719, 721 (7th Cir.2002). Thus, any challenge to Wyre’s sentence or the district court’s refusal to substitute counsel would also be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Michael Morgan was convicted in Indiana state court of criminal confinement after he confessed and pleaded guilty to holding his then-wife at gunpoint. Believing he was deprived of his Sixth Amendment right to effective assistance of counsel, Morgan sought post-conviction relief in Indiana state courts. After being rebuffed at all stages, Morgan petitioned for a federal writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition and refused to grant a certificate of appealability. Morgan appealed, and we certified the appeal to decide whether Morgan’s counsel was ineffective under United States v. Cronic, 466 U.S. 648, 104 *55S.Ct. 2039, 80 L.Ed.2d 657 (1984). We affirm the district court’s judgment.
In his state post-conviction petition, Morgan asserted that his appointed counsel, Michael Rader, was ineffective in three essential ways. First, he argued that Rad-er should have challenged the voluntariness of his confession and the validity of the victim’s testimony because both Morgan and the victim had a history of mental illness. Second, Morgan asserted that Rader should have tried to exclude police reports pertaining to his arrest. Finally, Morgan faulted Rader for failing to advise him before he pleaded guilty: Morgan said Rader never saw him outside the courtroom, never interviewed him or advised him of his rights, and merely forwarded him a copy of the state’s proposed guilty plea with a personal letter recommending that he accept the offer. The state trial court disbelieved these assertions and granted the state’s motion for summary judgment.
The Indiana Court of Appeals affirmed. The court expressed “no difficulty” in concluding that, even accepting Morgan’s factual allegations as true, Rader’s deficiencies were not “of the magnitude” contemplated by Cronic to merit a presumption of prejudice. Morgan v. State, No. 84A05-0602-PC-83, 2006 WL 2439809, *6 (Ind.Ct.App.2006). The Indiana Supreme Court declined review.
Morgan renewed his claims against Rad-er in a federal petition for a writ of habeas corpus. The district court denied the petition. The district court recognized that Cronic affords a presumption of prejudice in three exceptional circumstances: where there is a “complete denial of counsel,” where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or where outside circumstances prevent effectiveness. Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039. The court saw “no basis” in the record for Morgan to formulate his Cronic argument as a “complete denial of counsel,” and went on to accept as reasonable the state court’s determination that Rader did not fail to test the prosecution’s case. Morgan v. Calderone, No. 1:07-cv-763-DFH-JMS, 2008 WL 2095526, *3 & n. 1 (S.D.Ind.2008). Morgan appeals the district court’s decision.
Our review of the state court’s decision is governed by the Antiterrorism and Effective Death Penalty Act. Under the AEDPA Morgan is entitled to a writ of habeas corpus if the state court reached a decision that is (1) “contrary to” or “an unreasonable application of’ clearly established federal law as determined by the Supreme Court, or (2) the state court’s decision was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d); see Arredondo v. Huibregtse, 542 F.3d 1155, 1167-68 (7th Cir.2008).
On appeal Morgan reasserts that Rad-er’s performance violated Cronic.1 Rad-er’s performance was so deficient, Morgan contends, that it effectively denied him counsel and prevented him from testing the strength of the prosecution’s case. Morgan also argues that the state appellate court’s determination that his case was not of sufficient “magnitude” to merit a presumption of prejudice was “contrary to” and an “unreasonable application of’ federal law under § 2254(d)(1).
First, the state court’s decision was not “contrary to” the Supreme Court’s de*56cisión in Cronic. A state court’s decision is “contrary to” federal law if it applies the wrong standard or “decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); see also Arredondo, 542 F.3d at 1167. Morgan does not argue that the state court misapplied Cronic as the standard governing his petition, and since there are no Supreme Court cases based on “materially indistinguishable facts,” the state court’s refusal to apply Cronic could not be contrary to federal law.
As for the “unreasonable application” prong of AEDPA, the state court reasonably concluded that Morgan suffered no Cronic violation. Our review of a state court’s application of clearly established federal law is deferential: we will accept the application “even if it is likely incorrect, so long as it is reasonable.” Johnson v. Loftus, 518 F.3d 453, 456 (7th Cir.2008). Here, the state court reasonably applied both the first and second exceptions set forth in Cronic. A “complete denial of counsel” claim would require Morgan to show that Rader was “totally absent” or that he was “prevented from assisting during a critical stage of the proceedings.” Cronic, 466 U.S. at 659 & n. 25, 104 S.Ct. 2039. To show that Rader failed to test the prosecution’s case, Morgan would have to demonstrate that Rad-er’s failure was “complete” and persistent throughout the entire proceedings. Bell, 535 U.S. at 697, 122 S.Ct. 1843. But Morgan cannot show that Rader was deficient under either of these theories because Rader negotiated Morgan’s plea agreement and attended his plea hearing.
Furthermore, the state court’s conclusions are reasonable in light of the Supreme Court’s recent case law narrowing the scope of Cronic. Last year, for instance, the Court concluded that none of its decisions clearly established that Cronic should apply to an ineffective-assistance case in which counsel participated in a plea hearing by speakerphone. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008). In an earlier case, the Court also declined to hold that “in every case counsel’s failure to consult with the defendant ... is necessarily unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (evaluating 'duty to consult in context of bringing an appeal). Given this precedent, and the Court’s general reluctance to apply Cronic to claims of ineffective assistance arising from a plea hearing, see Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), we cannot say that the state court unreasonably applied Cronic.
Finally, Morgan asserts without elaboration that we should grant his petition because the state court’s decision involved “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2); Pole v. Randolph, 570 F.3d 922, 935 (7th Cir.2009). It would be impossible for Morgan to demonstrate unreasonable fact-finding in this case because the Indiana Court of Appeals, while upholding the summary judgment decision, presumed Morgan’s factual allegations to be true. Since the state court accepted the truth of Morgan’s assertions, the decision to deny relief does not “ ‘rest[ ] upon a determination of fact that lies against the clear weight of the evidence,’ ” Ben-Yisrayl v. Buss. 540 F.3d 542, 549 (7th Cir.), cert. denied, - U.S. -, 129 S.Ct. 2890, 174 L.Ed.2d 581 (2009), and Morgan cannot show that the court made an “unreasonable determination of the facts.”
AFFIRMED.
. We granted a certificate of appealability exclusively on the application of Cronic and not the more commonly invoked case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court concluded (and Morgan does not contest) that he forfeited his right to assert a claim under that case by not raising it in the state courts.
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ORDER
Phyllis Carr moved the bankruptcy court to allow her to file a late notice of appeal to the district court, contending that her attorney’s illness delayed a timely filing. The bankruptcy court refused, concluding Carr’s failure was inexcusable because she knew of the illness and assumed the risk of relying on her attorney. The district court agreed and affirmed the bankruptcy court’s refusal to allow a late appeal. We affirm the judgment of the district court.
Carr filed a proof of claim in the bankruptcy case of her former employer, United Airlines, alleging that United dis*58criminated against her on the basis of a disability. Carr and United settled her claim, with United agreeing to a general, unsecured pre-petition claim for cash against United’s estate. Under United’s bankruptcy plan, that claim translated into shares of common stock in United, but the shares were worth less than Carr anticipated. After she received her stock, Carr, now proceeding pro se, sought to vacate the settlement agreement in the bankruptcy court because, according to her, she was “conned” into signing an agreement that did not explain that her recovery in bankruptcy might be less than the stated amount of her general, unsecured claim. Carr also asserted that her attorney had been mentally ill and forced to give up almost all of her practice. The bankruptcy court denied her motion to vacate.
Carr filed a notice of appeal more than 10 days after the bankruptcy court’s order denying her request to vacate the settlement. Recognizing that the deadline for appealing had passed, she also moved for an extension of time to appeal, invoking Federal Rule of Bankruptcy Procedure 8002(c)(2). Carr argued that she missed the deadline because she relied on her attorney to file a timely appeal, but the attorney failed to file because of her mental illness. The bankruptcy court refused to extend the appeal deadline. It reasoned that Carr’s neglect was not excusable because she knew of her attorney’s mental health problems three months earlier when she asked the court to vacate the settlement and therefore accepted the risk of continuing with that attorney. Carr appealed this decision to the district court, and the district court agreed that Carr had not shown excusable neglect. We affirm the district court’s judgment.
Under Rule 8002, a bankruptcy court can extend the 10-day limit for filing a notice of appeal only if the movant establishes excusable neglect. Fed. R. BaNkr.P. 8002(c)(2). Excusable neglect is an equitable concept incorporating all the relevant circumstances surrounding the party’s omission, including the reason for the default, whether it was within the movant’s control, the prejudice to the nonmovant, and the interests of efficient judicial administration. Pioneer Inv. Servs. Co. v. Brunswick Assocs., Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); see Prizevoits v. Ind. Bell Tel. Co., 76 F.3d 132, 134 (7th Cir.1996) (concluding that Supreme Court’s definition of “excusable neglect” applies “throughout the federal procedural domain”). We review the bankruptcy court’s decision about excusable neglect for abuse of discretion. See In re Singson, 41 F.3d 316, 320 (7th Cir.1994).
Here the bankruptcy court reasoned that Carr’s reliance on her attorney to file a timely appeal was not excusable because Carr knew three months earlier that her attorney was ill and scaling back her caseload. Like any client, Carr is accountable for the inattentiveness of her attorney. See Easley v. Kirmsee, 382 F.3d 693, 699-700 (7th Cir.2004); Tango Music LLC v. DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir.2003). Aware that her lawyer’s reliability was questionable, Carr remained with that lawyer, a decision that was entirely within her control. And, as the bankruptcy court found, Carr articulated no reason for her late filing other than the illness known to her when she filed her pro se motion to vacate three months earlier. Under these circumstances, the bankruptcy court did not abuse its discretion in declining to allow a tardy appeal. See Raymond v. Ameritech Corp., 442 F.3d 600, 607-08 (7th Cir.2006) (no excusable neglect where delay was attributable entirely to factors within movant’s control); *59In re Kmart, 381 F.3d 709, 715 (7th Cir.2004) (same).
AFFIRMED.
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ORDER
Aikins Frimpong, a citizen of Ghana, entered the United States in 1976 and remained without permission past the expiration of his six-month tourist visa. Frimpong once was eligible for a path to citizenship through the Immigration Reform and Control Act—his status was adjusted to temporary legal resident through that program in 1989—but he fell off track *64by failing to submit the paperwork necessary to become a lawful permanent resident. See 8 U.S.C. § 1255a. In 1996 Frimpong was convicted by an Iowa court of second-degree robbery, Iowa Code §§ 711.1, 711.3, and possession of crack, id. § 124.401, and over the following decade he accumulated two more state convictions for possessing crack and a federal conviction for his role in a crack-distribution conspiracy, 21 U.S.C. §§ 846, 841(b)(1)(A). The government initiated removal proceedings in 2008 by filing a notice to appear alleging that Frimpong was removable on the basis of both his unlawful presence, 8 U.S.C. § 1227(a)(1)(B), and his criminal convictions, id. § 1227(a)(2)(A)(iii), (B)(1).
At a hearing before an immigration judge, Frimpong admitted that he was removable as charged but insisted that a federal prosecutor had promised him relief from removal in exchange for his assistance in the case against his coconspirators. Frimpong, however, did not produce any evidence of the alleged agreement and pointed only to a line in the probation officer’s presentence investigation report noting that the Bureau of Immigration and Customs Enforcement had “indicated they [would] not file a detainer” against Frimpong. After concluding that the notation was irrelevant to Frimpong’s removal proceedings, the immigration judge found him removable on the basis of his unlawful presence and criminal convictions and ordered him removed to Ghana. The Board of Immigration Appeals approved that decision, noting that under 28 C.F.R. § 0.197 (a regulation in effect since 1996, long-before Frimpong allegedly was assured he would not be removed), a prosecutor’s promise of immigration relief is not binding on the Department of Homeland Security without prior written authorization from the agency. See also United States Attorneys’ Manual § 9-73.510 (Sept.1997) (“[T]he United States Attorney should not, as part of a plea agreement or an agreement to testify, or for any other reason, promise an alien that he/she will not be deported, without prior authorization from the INS District Director.”). And, as the Board noted, Frimpong had not presented evidence of such authorization.
In his pro se petition for review, Frimpong insists again that he should not be removed from the country because a federal prosecutor promised him immigration relief in exchange for his assistance. But we lack jurisdiction to review a final order of removal against an alien who, like Frimpong, was ordered removed on the basis of an aggravated-felony or controlled-substance conviction, unless the petition raises a constitutional or legal question. See 8 U.S.C. § 1252(a)(2)(C), (D); Zamora-Mallari v. Mukasey, 514 F.3d 679, 693-94 (7th Cir.2008); Rosales-Pineda v. Gonzales, 452 F.3d 627, 629-30 (7th Cir.2006). A legal question arises when the agency has misinterpreted a statute, regulation, or constitutional provision, misread its own precedent, applied the wrong legal standard, or failed to exercise its discretion. Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir.2008). The question whether Frimpong entered into a cooperation agreement binding on the immigration authorities is one of fact that is beyond our review.
DISMISSED.
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ORDER
John Mason sold an undercover police officer 6 grams of crack cocaine. He pleaded guilty to distributing crack, 21 U.S.C. § 841(a)(1), and was sentenced to 180 months’ imprisonment. Mason appeals, but his appointed lawyers move to withdraw because they are unable to identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mason opposes dismissal of his appeal. See Cir. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief and Mason’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel inform us that Mason does not wish to challenge his guilty plea, so the lawyers properly refrain from discussing possible arguments about the voluntariness of the plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Instead, counsel’s Anders submission and Mason’s response identify potential defects in the sentence imposed. In the presentence investigation report, the probation officer set a base offense level of 32 because the relevant conduct involved at least 150 grams of crack, see U.S.S.G. § 2Dl.l(e)(4), and added 2 levels for possession of a firearm, see id. § 2Dl.l(b)(l). Mason’s status as a career offender yielded an identical level 34 because the statutory maximum for distributing 5 or more grams of crack is 40 years. See 21 U.S.C. § 841(b)(l)(B)(iii); U.S.S.G. § 4Bl.l(b). The probation officer subtracted 3 levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, for a total offense level of 31. A level 31, combined with the category VI criminal histoiy that resulted from Mason’s career-offender status, see id. § 4Bl.l(b), produced a guidelines imprisonment range of 188 to 235 months. The district court agreed that Mason was a career offender but imposed a below-range sentence of 180 months’ imprisonment.
Both defense counsel and Mason evaluate whether Mason could challenge his classification as a career offender. Mason’s only argument is that his two prior convictions in Cook County, Illinois, do not qualify as controlled substance offenses. But this argument would be frivolous because his prior convictions are for the *66manufacture or delivery of a controlled substance, a Class 2 felony under 720 III. Comp. Stat. 570/401, and the manufacture or delivery of marijuana, a Class 3 felony under 720 III. Comp. Stat. 550/5, and both offenses were punishable by more than a year in prison. Thus, the convictions qualify as controlled substance offenses for career-offender purposes. See U.S.S.G. § 4131.2(b); United States v. Kelly, 519 F.3d 355, 365 (7th Cir.2008).
Counsel and Mason also consider whether Mason could argue that the probation officer overstated the drug quantity and misapplied the upward adjustment for possession of a firearm when calculating the offense level under U.S.S.G. § 2D1.1. But this contention would be frivolous because the district court relied on the career-offender guideline, not § 2D1.1. The career-offender guideline always trumps § 2D1.1 if a higher offense level results, so in this case it would make no difference whether the probation officer made a mistake in applying § 2D1.1. See U.S.S.G. § 4Bl.l(b); United States v. Clanton, 538 F.3d 652, 660 (7th Cir.2008); United States v. Spence, 450 F.3d 691, 695 (7th Cir.2006).
Finally, counsel assess whether Mason could argue that 180 months’ imprisonment is an unreasonable sentence. A below-guidelines sentence is presumptively reasonable, United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008), and counsel have not suggested any reason why that presumption would not hold true as to Mason.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
John Gunartt filed this pro se adversary action against Fifth Third Bank, a creditor in his Chapter 7 bankruptcy. In his complaint Gunartt challenged the bank’s foreclosure of his property and sought removal of the bankruptcy trustee. The bankruptcy court dismissed Gunartt’s complaint. The district court upheld the dismissal, and we affirm.
Gunartt owned and was in the process of rehabilitating two multi-unit, residential buildings when he filed for bankruptcy. Fifth Third had financed the rehabilitation and held a substantial mortgage on the two buildings. Gunartt, however, failed to make a balloon payment for the entire principal balance, and as a result, the bank filed a foreclosure action in state court. Gunartt filed for protection under Chapter 11 of the Bankruptcy Code, but the bankruptcy court — on Fifth Third’s motion— converted the case to an involuntary Chapter 7 liquidation. Gunartt appealed the conversion, and the district court affirmed. The trustee worked to liquidate the estate’s nonexempt assets, negotiating the sale of the two buildings as well as a settlement of the bank’s secured claim. Both the sale and settlement were approved by the bankruptcy court, and Gu-nartt did not appeal.
Instead Gunartt filed this adversary action against Fifth Third, claiming that the bank drove him into bankruptcy when it breached its loan agreement with him, committed fraudulent lending practices, discriminated against him, and illegally attempted to foreclose on his property. After he filed his petition, Gunartt further contended, the bank filed a false proof of claim. Gunartt also claimed that the trustee had a conflict of interest and breached his fiduciary duty to the estate by selling the buildings for a sum below market value. As relief Gunartt sought damages, specific performance of his loan agreement with the bank, the dismissal of his Chapter 7 bankruptcy, and removal of the trustee.
The bankruptcy court dismissed the complaint, reasoning that only the trustee had standing to litigate Gunartt’s claims against Fifth Third because they had become property of the bankruptcy estate. *68Gunartt lacked standing, the court concluded, and the trustee had already administered the claims as part of the estate when he settled with the bank. To the extent that Gunartt’s claims related to actions taken within the course of the bankruptcy, the court concluded that Gunartt had waited too long to pursue them. Finally, the bankruptcy court declined to rule on Gunartt’s claims against the trustee because he failed to name the trustee as a defendant in the adversary complaint. Gunartt appealed, and the district court upheld the dismissal. We review the dismissal of an adversary complaint in bankruptcy de novo. Zedan v. Habash, 529 F.3d 398, 403 (7th Cir.2008).
On appeal Gunartt generally renews his contention that the bankruptcy court wrongly dismissed his complaint. With respect to the court’s conclusion that his Chapter 7 bankruptcy deprived him of standing to litigate his claims, Gunartt reiterates that the Chapter 11 reorganization plan was “illegally” converted to an involuntary plan under Chapter 7. But Gunartt has separately litigated and lost his challenge to the conversion of his bankruptcy to a Chapter 7 liquidation, and he did not appeal that order. See Gunartt v. Fifth Third Bank, 07-cv-2399 (May 25, 2007 N.D. Ill.) (unpublished order).
Gunartt also appears to contend that the trustee could not have standing to litigate his claims because they were “non-core causes of action” that did not arise under the Bankruptcy Code. But whether a bankruptcy proceeding is “core” or “non-core” concerns the bankruptcy court’s limited jurisdiction to hear claims related to a bankruptcy case; it has nothing to do with a potential litigant’s standing in bankruptcy court or district court. See 28 U.S.C. 157(c); Celotex Corp. v. Edwards, 514 U.S. 300, 308 n. 6, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995); In re FedPak Systems, Inc., 80 F.3d 207, 211-14 (7th Cir.1996) (analyzing issue of standing apart from issue of bankruptcy court’s statutory jurisdiction over non-core proceeding). As the bankruptcy court here correctly concluded, Gunartt lacked standing to pursue these claims because at the commencement of his bankruptcy, all of his property, including the claims against the bank, became part of the bankruptcy estate, giving the trustee exclusive standing to litigate the claims. See 11 U.S.C. § 541(a)(1); Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir.2006); In re Polis, 217 F.3d 899, 901 (7th Cir.2000); Cable v. Ivy Tech State College, 200 F.3d 467, 472 (7th Cir.1999).
Finally, Gunartt contests the dismissal of his claim seeking the removal of the trustee for an alleged conflict of interest. Gunartt argues that because he is a pro se litigant, the bankruptcy court should have excused his failure to name the trustee as a defendant. Although courts are required to liberally construe pro se pleadings, pro se litigants are not excused from compliance with the rules of procedure. Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.2008) (citing McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993)). And while the bankruptcy court may have an independent duty to remove a trustee with a conflict of interest, removal is an extreme remedy, committed to the sound discretion of the bankruptcy court. See 11 U.S.C. § 324(a); In re Morgan, 375 B.R. 838, 847-48 (8th Cir. BAP 2007); In re AFI Holding, Inc., 355 B.R. 139, 148 (9th Cir. BAP 2006). Here, Gunartt’s request to have the trustee removed appears to be based on his dissatisfaction with the sale of the two buildings rather than any clearly identified conflict of interest, and thus we cannot say that the court abused its discretion by dismissing the complaint.
*69Accordingly, we AFFIRM the judgment of the district court.
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ORDER
Wisconsin prisoner William Lewis, proceeding pro se, sued D.C. Norton, an official with the U.S. Department of Veterans Affairs, challenging the agency’s reduction of his service-connected disability benefits and its recoupment of benefits paid to him during his incarceration. The district court dismissed the complaint for lack of subject-matter jurisdiction. We affirm.
In 2008, the VA reduced Lewis’s veterans’ benefits pursuant to 38 C.F.R. § 3.665(e)(3), which reduces by one-half the benefits paid to any veteran who was incarcerated in October 1987 and remained incarcerated after December 2001. The agency also sought to recoup $4,606.87 in overpaid benefits that Lewis received between 2002 and 2008—a period when his benefits should have been reduced under *70the regulation. Lewis, who has been incarcerated since 1971, complained to the regional VA office that the agency wrongly reduced his future benefits and recouped the overpaid benefits “in an ex post facto fashion.” The VA, however, found the agency’s actions proper. Lewis then sued a manager at the VA’s Milwaukee Service Center, claiming that the VA’s use of § 8.665 to reduce his benefits violated the Ex Post Facto Clause of the Constitution. The district court screened the complaint under 28 U.S.C. § 1915A and dismissed it for lack of subject-matter jurisdiction, concluding that Lewis’s claim was subject to review only through the jurisdictional scheme established in the Veterans’ Judicial Review Act of 1988 (“VJRA”).
On appeal Lewis reiterates the allegations in his complaint and argues that the district court abused its discretion in dismissing his suit for lack of subject-matter jurisdiction. He contends that the district court’s interpretation of the VJRA deprived him of “the fundamental right of access to courts.”
The VJRA establishes a framework for the adjudication of veterans’ benefits claims. A veteran must first file a claim for benefits at a regional VA office that decides all questions of law and fact as they relate to the claim. 38 U.S.C. § 511(a). Veterans may appeal unfavorable benefits decisions to the Board of Veterans’ Appeals, id. § 7104(a), then to the Court of Appeals for Veterans Claims, id. § 7252(a), then to the Federal Circuit, id. § 7292(c), and finally to the Supreme Court, id. § 7291. See also Mehrkens v. Blank, 556 F.3d 865, 869 (8th Cir.2009); United States v. Roberts, 534 F.3d 560 n. 3 (7th Cir.2008). The VJRA’s jurisdictional scheme precludes district courts from reviewing challenges to individual benefits decisions such as denials or delays of benefits. See Mehrkens, 556 F.3d at 870; Price v. United States, 228 F.3d 420, 422 (D.C.Cir.2000); Beamon v. Brown, 125 F.3d 965, 974 (6th Cir.1997); Marozsan v. United States, 90 F.3d 1284, 1287 (7th Cir.1996); Hall v. U.S. Dep’t of Veterans Affairs, 85 F.3d 532, 534-35 (11th Cir.1996); Zuspann v. Brown, 60 F.3d 1156, 1159-60 (5th Cir.1995).
Where subject-matter jurisdiction is in dispute, “we look beyond the four corners of the complaint to discern the actual injury claimed by the plaintiff.” Johnson v. Orr, 551 F.3d 564, 568 (7th Cir.2008). A plaintiff may not circumvent the VJRA’s jurisdictional limitations by cloaking a benefits claim in constitutional terms. See Czerkies v. U.S. Dep’t of Labor, 73 F.3d 1435, 1439 (7th Cir.1996) (en banc); Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.1994). Here, despite Lewis’s attempts to couch his complaint in constitutional terms, his actual injury arises from the VA’s decision to reduce his benefits and recoup overpaid benefits. Under the VJRA’s jurisdictional framework, Lewis’s only option was to appeal the VA’s decision to the Board of Veterans’ Appeals; he could then appeal to the Court of Appeals for Veterans Claims and if necessary the Federal Circuit. See 38 U.S.C. §§ 511(a), 7252(a), 7292(c).
AFFIRMED.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell L. Padgett appeals the district court’s order granting his 18 U.S.C. § 3582 (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Further, we note that any error resulting from the district court’s failure to apportion the amended sentence among the counts of conviction was harmless. See United States v. Chase, 296 F.3d 247, 249-50 (4th Cir.2002). We deny Padgett’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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PER CURIAM: *
The U.S. Bankruptcy Court for the Southern District of Texas imposed monetary sanctions on the appellants for filing a bad faith bankruptcy petition containing significant misstatements of fact. The appellants appealed to the U.S. District Court for the Southern District of Texas, which remanded to the bankruptcy court to clarify whether it had imposed the sanctions pursuant to Fed. R. Bankr.P. 9011 or on the basis of the inherent powers of the bankruptcy court. The bankruptcy court issued a second order clarifying that Rule 9011 was the basis of the sanctions. The district court affirmed that order, and the appellants appealed to this court. The amount of the sanctions at issue is $10,000 for Thomas Wayland and $5,000 for Timothy Byrd.
“We review a district court’s affirmance of a bankruptcy court decision by applying the same standard of review to the bankruptcy court decision that the district court applied.” In re Martinez, 564 F.3d 719, 725-26 (5th Cir.2009). “We thus generally review factual findings for clear error and conclusions of law de novo." Id. at 726 (quoting In re OCA, Inc., 551 F.3d 359, 366 (5th Cir.2008)) (internal quotation marks omitted). We review a bankruptcy court’s decision to impose sanctions for abuse of discretion. In re First City Bancorporation of Tex. Inc., 282 F.3d 864, 867 (5th Cir.2002). “A court abuses its discretion when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. (quoting Chaves v. M/V Medina Star, 47 F.3d 153, *839156 (5th Cir.1995) (internal quotation marks omitted)).
The bankruptcy court clearly had a sufficient evidentiary basis for its factual conclusion that the appellants filed their bankruptcy petition in bad faith. The appellants argue that sanctions under Rule 9011 are somehow akin to criminal contempt sanctions and that bankruptcy courts therefore lack the power to impose them, but there is no legal basis for equating the two types of sanctions. See In re DeVille, 361 F.3d 539, 552-53 (9th Cir.2004) (distinguishing between the processes and purposes of Rule 9011 sanctions and criminal contempt).
The appellants further argue that the imposition of Rule 9011 sanctions is not a “core” matter over which bankruptcy courts have jurisdiction to issue final orders under 28 U.S.C. § 157. But the imposition of sanctions on litigants in a bankruptcy case is clearly a matter “arising in” such a case, 28 U.S.C. § 157(b)(1), so bankruptcy courts have jurisdiction to issue such orders. See In re Memorial Estates, Inc., 950 F.2d 1364, 1370 (7th Cir.1991); cf. In re Southmark Corp., 163 F.3d 925, 930-31 (5th Cir.1999) (holding that a lawsuit alleging malpractice by an accountant in a bankruptcy case was a “core” matter within a bankruptcy court’s jurisdiction).
Finally, the appellants argue that the bankruptcy court lacked the power to impose Rule 9011 sanctions on remand because the U.S. Trustee did not cross-appeal from the original imposition of sanctions. But the bankruptcy court’s decision on remand only clarified the legal basis of the sanctions the court had initially imposed (and also reduced the amount of the sanction against Mr. Wayland after he expressed remorse). No cross-appeal is needed in order to give an appellate court the power to remand for clarification of the legal basis for the imposition of sanctions. See Crowe v. Smith, 151 F.3d 217, 240 (5th Cir.1998) (vacating an order imposing sanctions under an incorrect theory, and remanding for consideration of whether sanctions could be imposed under an alternative theory, when only the parties who were sanctioned had appealed).
For the foregoing reasons, we AFFIRM the district court’s judgment affirming the bankruptcy court’s sanctions order.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
Gary Pierce, now proceeding pro se, appeals the district court’s entry of summary judgment against him. On the day that Pierce’s response to the motion for sum*29mary judgment filed by the Illinois Depart of Human Services (“IDHS”) was due, Pierce’s then-counsel asked for an extension of time to file a response. The district court granted the request, albeit on the date that counsel had requested, but counsel did not file the response in time. Citmg a local rule which provides that a failure to respond to a motion for summary judgment means the motion is admitted, the district court granted summary judgment in the defendant’s favor. We affirm the grant of summary judgment in favor of IDHS in light of counsel’s failure to comply with deadlines throughout this case and because summary judgment was proper as a matter of law.
I. BACKGROUND
The Illinois School for the Deaf is a residential school in Jacksonville, Illinois that serves deaf and hard-of-hearing children. IDHS operates the school. Gary Pierce began working at the school in 1994 as a residential care worker and left in 2003 after he took an educational leave of absence.
Pierce, an African-American male, maintains he was subjected to discrimination and harassment on the basis of his race during his employment at the school. After receiving a right-to-sue letter from the EEOC, he filed suit in federal court. The district court granted IDHS’s motion to dismiss the complaint, and Pierce appealed. We affirmed the dismissal of Pierce’s disparate treatment claim but concluded the complaint stated a hostile work environment claim, and we remanded for further proceedings. Pierce v. Ill. Dep’t of Human Servs., 128 Fed.Appx. 534 (7th Cir.2005) (unpublished).
On December 21, 2006, IDHS moved for summary judgment on Pierce’s hostile work environment claim. Pursuant to local rules, Pierce’s response was due twenty-one days later, on January 11, 2007. On the day the response was due, Pierce’s counsel filed a written motion for an extension of time that asked the district court to grant her until February 10, 2007 to file the response. February 10, 2007 was actually a Saturday. The district court did not rule on Pierce’s motion for an extension until Monday, February 12, 2007. When it did, it granted the motion and stated the response was due the same day (February 12, 2007).
Two days later, Pierce’s counsel filed a motion that requested an additional four days (through February 16) to file a response to IDHS’s motion for summary judgment. Counsel stated in support of her motion that she had been in the process of finalizing the response when a blizzard hit on February 13, which snowed in counsel’s administrative assistant and also rendered Pierce unable to leave his house to sign his affidavit.
On February 15, 2007, 2007 WL 522022, the district court granted IDHS’s motion for summary judgment. The district court cited United States District Court for the Central District of Illinois Local Rule 7.1(D)(2), which states that “a failure to respond [to a summary judgment motion] shall be deemed an admission to the motion.” The next day, Pierce’s counsel moved to file a response to the motion for summary judgment instanter. In that motion, counsel stated that she thought February 12 was a federal holiday (it was not), and that a blizzard had hit on February 13. The district court denied the motion pursuant to Local Rule 7.1(B)(1), which requires that any motion that raises a question of law include citations to supporting law or authority upon which the movant relies and also requires that it identify the rule under which the motion is filed. The district court also stated that its earlier ruling to deem the motion for *30summary judgment admitted was appropriate in light of the circumstances of the case, as counsel had waited until the last minute to do everything. Pierce appeals, now proceeding pro se.
II. ANALYSIS
Pierce appeals from the district court’s entry of summary judgment against him. The district court granted IDHS’s motion for summary judgment in light of United States District Court for the Central District of Illinois Local Rule 7.1(D)(2), which provides:
Response to Motion For Summary Judgment:
Within 21 days after service of a motion for summary judgment, any party opposing the motion shall file a response. A failure to respond shall be deemed an admission of the motion.
The district court deemed Pierce to have admitted the motion because a timely response had not been filed.
We review for an abuse of discretion a district court’s determination that a litigant filed a response to a motion for summary judgment late and therefore refused to consider it. Raymond v. Ameritech Corp., 442 F.Sd 600, 604 (7th Cir.2006). Federal Rule of Procedure 6(b) authorizes a court to establish deadlines and gives it the authority to enforce them, Raymond, 442 F.3d at 605, and we have repeatedly recognized the importance of complying with local rules. See Koszola v. Bd. of Educ. of the City of Chi., 385 F.3d 1104, 1109 (7th Cir.2004) (“ ‘[W]e have emphasized the importance of local rules and have consistently and repeatedly upheld a district court’s discretion to require strict compliance with its local rules governing summary judgment.’ ”) (quoting Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 562 (7th Cir.2002) (internal quotation marks omitted)); see also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003); Spears v. City of Indianapolis, 74 F.3d 153, 156-57 (7th Cir.1996).
The consequences of failing to comply with a district court’s local rules can be severe. “[T]he district court clearly has authority to enforce strictly its Local Rules, even if a default results.” Tobel v. City of Hammond, 94 F.3d 360, 362 (7th Cir.1996). And, unfortunately for Pierce, civil litigants are held responsible for the mistakes or omissions of their attorneys. See Easley v. Kirmsee, 382 F.3d 693, 699-700 (7th Cir.2004); Tango Music, LLC v. DeadQuick Music, Inc., 348 F.3d 244, 247 (7th Cir.2003).
Under the circumstances present in this case, it would not be easy to find that the district court abused its discretion when it determined that Pierce’s counsel failed to comply with Local Rule 7.1(D)(2) and then enforced that rule. Counsel did not move to extend the time to file a response to IDHS’s motion for summary judgment until the very day it was due. In her motion, counsel asked the district court to give her until February 10, 2007 to file the motion, yet the motion was not ready on that day. That meant that although counsel had 53 days from the day IDHS filed its motion for summary judgment through February 12, counsel did not have its response ready. Cf. Raymond, 442 F.3d at 608 (affirming district court’s decision not to accept late response to motion for summary judgment when party had 48 days to file response).
As the district court suggested, the failure to file a response to the motion for summary judgment on time was not the first problem with deadlines in this case. The district court entered a scheduling order directing that the parties make their initial disclosures by August 3, 2005. When Pierce’s initial disclosures had not *31been made, IDHS filed a motion on September 30, 2005 that asked the court to enter an order compelling the plaintiff to provide its initial disclosures. The motion recounted that IDHS counsel had sent Pierce’s counsel letters on August 10, 2005 and September 16, 2005 requesting the overdue initial disclosures but had not received a response. The district court entered an order on September 30, 2005 and directed the plaintiff to file a response by-October 14, 2005. Four days after the due date, Pierce’s counsel filed a notice that it had served its initial disclosures on IDHS.
IDHS later filed a motion to compel overdue responses to the defendant’s interrogatories and requests for production of documents. The district court denied the motion without prejudice based on an understanding that counsel would provide responses within thirty days. Two months later, the plaintiff still had not produced the documents, so IDHS filed a second motion to compel on June 26, 2006. Pierce’s counsel requested additional time to respond, and the district court allowed until September 1, 2006 for the plaintiff to respond to IDHS’s discovery requests and until September 15, 2006 for IDHS to depose Pierce. The court stated that no further fact discovery would be allowed. When IDHS still did not receive the discovery responses, it moved for sanctions on September 12, 2006. As a result, the circumstances of the case support the district court’s enforcement of the local rule.
At the least, in light of the failure to file a response on time, the district court could have deemed IDHS’s statement of undisputed facts admitted and then determined whether summary judgment was warranted as a matter of law. See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). Our review of whether summary judgment is appropriate as a matter of law looks at the record de novo. Peirick v. Ind. Univ.—Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 687 (7th Cir.2007). In this case, summary judgment would have been warranted based on the IDHS’s statement of undisputed facts.
A hostile work environment requires that the plaintiff show, among other things, that the conduct was “severe or pervasive” enough to create a hostile work environment. Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir.2004). The most egregious incidents alleged in this case are that a co-worker flashed a Ku Klux Klan sign toward Pierce and that a different co-worker called him a “nigger.” Both incidents took place in 1999, four years before Pierce left IDHS, and the latter occurred in a park while the coworker was not working. These actions were deplorable. Nonetheless, isolated incidents like these involving other co-workers do not rise to the level of environments we have deemed hostile. See, e.g. Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 552 (7th Cir.2002) (isolated statements by co-worker, including one use of word “nigger,” did not rise to the level of objectively hostile environment). Pierce does point to other comments referencing race: (1) in 1994, one of his co-workers commented that all blacks look alike; (2) in 1994, Pierce heard two racist jokes in the smoke room; (3) in 1994, a co-worker commented that he was glad that the school was hiring more blacks; (4) at a cultural diversity workshop on October 6, 1995, the word “nigger” was used as part of the presentation; and (5) in March or April of 1996, a co-worker told Pierce that her husband worked at Western Illinois Correctional Center and she feared for his safety because he had to work with African-American inmates in the barber shop. Many of these comments, however, were not directed at Pierce. See Peters, 307 *32F.3d at 552 (impact of “second-hand” harassment not as great as harassment directed at the plaintiff). None involved a supervisor. Cf. Cerros v. Steel Technologies, Inc., 398 F.3d 944 (7th Cir.2005) (reversing grant of summary judgment for defendant where supervisors and co-workers subjected plaintiff to direct and highly racial epithets, co-workers openly advocated the Ku Klux Klan, and there was racially-motivated graffiti in bathroom). All told, the incidents that took place over a ten-year period do not rise to the level of an objectively hostile work environment. See Peters, 307 F.3d at 552. Summary judgment was therefore proper as a matter of law.
III. CONCLUSION
The district court’s grant of summary judgment is affirmed.
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https://www.courtlistener.com/api/rest/v3/opinions/8475262/
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ORDER
This case arose when Donna Flieschli asked the government to return a number of items that had been seized in conjunction with a prosecution against her husband, Joseph. She sought sanctions against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) after it failed to do so, but the district court refused to take that step. Flieschli did not appeal from that order; instead, she filed a motion to reconsider, which the district court also denied. The latter ruling is the only one now before us. Flieschli has suggested no reason, however, why the district court abused its discretion by standing firm; instead, she has attempted belatedly to raise arguments that she could have presented had she filed a timely appeal from the underlying order. We therefore affirm.
I
For years, Flieschli has struggled with federal authorities to recover an arsenal of firearms. In 1998, agents from the Bureau seized numerous firearms, explosives, destructive devices, and ammunition from the home she shared with her husband, Joseph Flieschli, and from Joseph’s business. As a convicted felon, Joseph was prohibited from possessing firearms. See 18 U.S.C. § 922(g)(1).
After Joseph’s conviction for possession of a bevy of firearms in 2003, see United States v. Fleischli, 305 F.3d 643 (7th Cir.2002), cert. denied, 538 U.S. 1001, 123 S.Ct. 1923, 155 L.Ed.2d 828 (2003), the Bureau filed a civil complaint seeking forfeiture of various firearms, explosives, and ammunition. Donna Flieschli, proceeding pro se, answered the Bureau’s complaint and opposed forfeiture. Ruling on the Bureau’s complaint in December 2003, the district court entered a forfeiture order specifying 33 items forfeited to the United States and 29 items that were not forfeited. Flieschli claims that the nonforfeited items had a value of $76,000. Of the 29 nonforfeited items, only six remained in the Bureau’s possession at the time of the court’s order. The Bureau says that it had destroyed 23 items without notifying the court, although we are noi told when the destruction occurred.
Unaware at the time of the forfeiture order that the Bureau had destroyed most of the nonforfeited property listed in the district court’s order, Flieschli embarked on a three-year quest to recover everything. Flieschli first appealed the forfeiture order to this court; the order was affirmed. United States v. Miscellaneous Firearms, Explosives, Destructive Devices, & Ammunition, 376 F.3d 709 (7th Cir.2004), cert. denied, 544 U.S. 1019, 125 S.Ct. 1999, 161 L.Ed.2d 859 (2005). Then *34Flieschli moved the district court to set aside the judgment of forfeiture for lack of subject matter jurisdiction, but the district court denied that motion. United States v. Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition, 399 F.Supp.2d 881, 882 (C.D.Ill.2005).
Next, Flieschli wrote to the Bureau demanding the return of the nonforfeited items. Without informing Flieschli that it had already destroyed some nonforfeited items, the Bureau directed a field officer to return all her nonforfeited property. More than a year later, the Bureau returned one item (an ammo drum). Six months later, the Bureau returned five more items. At that time, it included a notation on a receipt disclosing that six identified items in the nonforfeited group had been destroyed. The notation did not say anything about the other 17 nonforfeited items.
Nearly three years later, in 2008, Flieschli asked the district court to find the Bureau in contempt and to sanction it for failing to return her nonforfeited property in accordance with the court’s order. Flieschli also sought compensation for the fair-market value of property that the Bureau was unable to return. The Bureau offered two reasons why sanctions were inappropriate. First, it maintained that it had lawfully destroyed any unreturned property because that property was unsafe to move or store. See 18 U.S.C. § 844(c)(2) (permitting the government to destroy explosive material subject to forfeiture before a “credible witness” if it is impracticable or unsafe to remove or store the items). To substantiate this argument, the Bureau submitted the receipt containing the notation that the Bureau had destroyed six items for safety or storage reasons, but it submitted nothing to authenticate that notation, nor did it offer any evidence about the other 17 unaccounted-for items. Second, the Bureau argued that Flieschli had a statutory remedy available to compensate her for the destroyed property. See 18 U.S.C. § 844(c)(3) (stating that any person having an interest may apply to the Attorney General for reimbursement within 60 days after any destruction under 18 U.S.C. § 844(c)(2)).
In light of the Bureau’s revelation that it had already destroyed all the unreturned property, Flieschli asked for leave to file a reply brief. In her proposed reply, Flieschli contends that sanctions were appropriate as compensation for the considerable time and effort that she has expended in what appears to be a futile effort to recover property that has already been destroyed. The district court denied leave to file a reply and denied her request for sanctions against the Bureau. It ruled that the Bureau had lawfully destroyed all of the unreturned, nonforfeited items, and that sanctions were inappropriate because Flieschli had not pursued an available statutory remedy.
At this point, Flieschli made a critical mistake. Rather than appeal the district court’s ruling, Flieschli did nothing for a month and then filed a motion to reconsider. In that motion, she argued that the district court erroneously had concluded that the property was destroyed and that sanctions were inappropriate. Flieschli also demanded compensation for the time and expense that the Bureau could have spared her had it timely notified her of the property’s destruction. The district court denied her motion on October 1, 2008. On November 25, 2008, within 60 days of the ruling on the motion to reconsider but nearly four months after the sanctions ruling, Flieschli appealed the district court’s denial of her motion to reconsider.
II
Flieschli’s motion to reconsider was filed more than ten days after entry of the *35district court’s order denying sanctions. Therefore, we treat the motion under Federal Rule of Civil Procedure 60(b). Fed. R.App. P. 4(a)(4)(vi); Tolano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir.2001). We lack jurisdiction to review the underlying sanctions decision because Flieschli filed no timely appeal from that decision. Easley v. Kirmsee, 382 F.3d 693, 696 n. 3 (7th Cir.2004); Del Carmen v. Emerson Elec. Co., 908 F.2d 158, 161 (7th Cir.1990). Had she appealed that order, Flieschli could have argued that the district court clearly erred in finding that all the nonforfeited items were lawfully destroyed. She also could have taken issue with the court’s legal finding that she had an available statutory remedy for the unreturned property.
But Flieschli filed only a Rule 60(b) motion, and therefore she must demonstrate in this appeal that the district court abused its discretion in denying her motion. See Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir.2005). Relief under Rule 60(b) is an extraordinary remedy granted only in exceptional circumstances. Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.2006); McCormick v. City of Chicago, 230 F.3d 319, 327 (7th Cir.2000). We review a district court’s ruling on a Rule 60(b) motion only for abuse of discretion. Eskridge v. Cook County, 577 F.3d 806, 808 (7th Cir.2009).
In order to enforce the jurisdictional time periods for taking an appeal, we have emphasized that Rule 60(b) cannot be used as a device that simply extends the time for making arguments that would have been available on a direct appeal. Stoller v. Pure Fishing, Inc., 528 F.3d 478, 480 (7th Cir.), cert. denied, - U.S. --, 129 S.Ct. 609, 172 L.Ed.2d 457 (2008); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir.2000). In this case, moreover, we would review the district court’s decision denying sanctions deferentially and would set it aside only for abuse of discretion, Bailey v. Roob, 567 F.3d 930, 933 (7th Cir.2009). This makes Flieschli’s challenge even more formidable because, in denying her Rule 60(b) motion, the district court acted with “discretion piled upon discretion.” Bakery Mach. & Fabrication, Inc. v. Traditional Baking Inc., 570 F.3d 845, 848 (7th Cir.2009) (citation omitted).
Flieschli has styled her argument as an appeal from the denial of her Rule 60(b) motion, but in substance she simply focuses on two alleged errors in the district court’s ruling on her motion for sanctions. Flieschli first contends that she had no statutory remedy under 18 U.S.C. § 844 because she was not given notice that her property was destroyed until the government’s reply to her motion for sanctions, which was more than 60 days from the day of destruction. See 18 U.S.C. § 844(c)(3). But this is an argument that she was free to make on direct appeal. Therefore, the district court acted within its discretion in rejecting it as a basis for relief under Rule 60(b). Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.2002).
Flieschli’s second argument shares the same fate. She argues that the government misrepresented to the district court that the Bureau had destroyed the nonforfeited items. See FedR.CivP. 60(b)(3). She explains that although the government claimed in its response to the motion for sanctions that the Bureau had destroyed the property, the Bureau’s directive to a field officer in 2004 to return all the non-forfeited items demonstrates that it had not done so. This argument fails, too, however as a basis for relief under Rule 60(b). She discovered this asserted fabrication in time to use it as a basis for relief on direct appeal. Therefore, the district court acted reasonably in denying her Rule 60(b) motion on this basis as well. Gleash, *36308 F.3d at 761. Rule 60 authorizes relief only if the claimed misrepresentation affected the party’s ability to present her case on direct appeal, and that did not occur here. Ty Inc. v. Softbelly’s, Inc., 353 F.3d 528, 536 (7th Cir.2003).
Last, Flieschli also demanded compensation for the time and expense that the Bureau could have spared her had it advised her sooner that her property was destroyed. Rule 60(b), however, is not the proper avenue for pursuing damages for a claim of government neglect. See, e.g., Delay v. Gordon, 475 F.3d 1039, 1044-45 (9th Cir.2007); United States v. One Toshiba Color Television, 213 F.3d 147, 158 (3d Cir.2000); United States v. One Hundred Nineteen Thousand Nine Hundred Eighty Dollars, 680 F.2d 106, 107-08 (11th Cir.1982); United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1356 (5th Cir.1972).
Accordingly, we AFFIRM the district court’s denial of the motion to reconsider.
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