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*163SUMMARY ORDER
Defendants-Cross-Defendants-Appellants Mark Gelfman, Gelfman International Enterprises, Inc., and Yanis Gelfman (“defendants”) appeal from the District Court’s memorandum and order entered December 22, 2008, which granted Plaintiffs-Cross-Defendants-Appellees Yuri and Dmitri Kuklachev’s (“plaintiffs”) motion for a preliminary injunction barring defendants from using the words “Moscow Cat Theatre,” “Moscow Cats Theatre,” or any confusingly similar name in connection with performances. On appeal, defendants argue that the District Court erred in the following respects: (1) by concluding that plaintiffs’ delay of approximately 18 months in seeking an injunction did not preclude a showing of irreparable harm; (2) by not holding an evidentiary hearing to resolve disputed issues of fact; (3) by improperly finding that plaintiffs (a) owned the mark in question based on prior use and (b) did not abandon that mark; and (4) by not imposing geographic limits on the injunction or requiring a more substantial bond. We assume the parties’ familiarity with the factual and procedural history of the case.
We review the District Court’s grant of a preliminary injunction for abuse of discretion. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 116 (2d Cir.2009); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citations, alterations, and quotation marks omitted)).
We hold that the District Court did not err in finding that plaintiffs’ delay was excusable based, in part, on “the need to investigate the nature of the infringement and to explore what legal recourse was possible” and further because of “the difficulty of locating suitable attorneys in the United States and also by the absence of immediate threat of harm, given that there were no shows scheduled after January 2008.” Kuklachev v. Gelfman, 629 F.Supp.2d 236, 251 (E.D.N.Y.2008). We also find no error in the remaining determinations of the District Court that defendants challenge. Substantially for the reasons stated in the District Court’s thorough and careful memorandum and order entered December 22, 2008, Kuklachev, 629 F.Supp.2d 236, the order of the District Court is AFFIRMED.
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PER CURIAM.
In this appeal, United States Technology Corporation appeals the district court’s dismissal of its request for injunctive and declaratory relief. Having reviewed the briefs and records in this case, we concur with the district court’s well-reasoned opinion and AFFIRM its judgment. US Technology Corp. v. Stephen L. Johnson, et al., No. 2:08-CV-82, 2009 WL 86745 (S.D.Ohio Jan. 13, 2009).
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MEMORANDUM **
Ravinesh Govind, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal and cancellation of removal, and the BIA’s order denying his motion to remand proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, Chebchoub v. INS, 257 F.3d 1088, 1042 (9th Cir.2001), and for abuse of discretion the denial of a motion to remand, Malhi v. INS, 336 F.3d 989, 992 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that Govind did not establish that the harms he experienced after the 1987 coup rose to the level of persecution. See Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (“Random, isolated criminal acts perpetrated by anonymous thieves do not establish persecution.”). Substantial evidence also supports the agency’s finding that Govind’s similarly situated Indo-Fijian parents remained in Fiji for twelve years without incident after his departure, and thus Govind did not demonstrate a well-founded fear of persecution. See Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir.2001). Accordingly, Go-vind’s asylum and withholding of removal claims fail.
We lack jurisdiction to review the agency’s discretionary determination that Govind failed to show exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.2005).
The BIA acted within its broad discretion in determining the transcript was sufficient, and denying Govind’s motion to remand. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law”); see also Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir.2003) (en banc) (a motion to remand is treated as a motion to reopen).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Ricardo Becerra-Serrano and Maria Magdalena Becerra, spouses and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their applications for cancellation of removal, and the BIA’s order denying their motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, including due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). In No. 06-72913, we dismiss the petition for review. In No. 06-74248, we deny the petition for review.
Petitioners did not file their first petition to this court within 30 days of the BIA’s decision. We therefore lack jurisdiction, and dismiss their petition. See Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir.2007).
The BIA did not abuse its discretion by denying Petitioners’ motion to reopen, because the BIA considered the evidence they submitted and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law.”).
The BIA also did not abuse its discretion in denying Petitioners’ motion to reopen because they failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See *962Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.2004).
Petitioners’ remaining contentions are unpersuasive.
IN 06-72913, PETITION FOR REVIEW DISMISSED.
IN 06-74248, 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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JUDGMENT
PER CURIAM.
This cause was considered on the record from the United States District Court for the District of Columbia, and was briefed and argued by counsel. It is
Ordered and Adjudged that the judgment of the District Court be affirmed on the limited grounds given in this judgment.
Appellant Kevin Walters challenges the District Court’s denial of his motion to suppress tangible evidence seized from a search of his car and a later search of his residence. United States v. Walters, 563 F.Supp.2d 45 (D.D.C.2008). The arguments raised by Walters on appeal do not demonstrate a Fourth Amendment violation as to either search.
Appellant first argues that the search of his car was unlawful because the initial stop for a traffic violation was pre-textual. However, a stop is reasonable under the Fourth Amendment so long as the police have probable cause to believe that a traffic violation has occurred, regardless of the officers’ actual motivations for the stop. United States v. Mapp, 476 F.3d 1012, 1016 (D.C.Cir.2007) (citing Whren v. United States, 517 U.S. 806, 810, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). The District Court properly found that the officers who stopped Walters had probable cause to believe that his car windows were tinted in violation of District of Columbia law. See Walters, 568 F.Supp.2d at 48-49. The officers therefore executed a permissible stop.
*154The officers testified that as they approached Walters’ vehicle during the stop for the tint violation, they smelled burnt marijuana and Walters appeared nervous, his hands visibly shaking. See id. at 47. In response to a question as to whether he had any narcotics on his person or in the vehicle, Walters “made a quick motion towards his right side” and one of the officers quickly grabbed Walters’ hands. Id. at 47-48. Responding to a second question about possession of narcotics, Walters indicated that he had marijuana on his person and gestured to his right side. Id. at 48. One of the officers reached into Walters’ pocket and recovered marijuana and a lighter. Id. On appeal, Walters did not challenge the circumstances leading to this search of his pocket. Specifically, Walters did not contest the District Court’s determination that his statements and gestures indicating that he had marijuana on his person were not obtained in violation of his Miranda rights. See Walters, 563 F.Supp.2d at 50-52; see also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant further failed to challenge the District Court’s determination that the officers had probable cause to search his person. Walters, 563 F.Supp.2d at 52.
Appellant primarily argues that the uncorroborated testimony of police officers that they smell burnt marijuana is insufficient to establish probable cause to search a vehicle. See Appellant’s Br. at 6, 8. The court need not reach this issue. After finding marijuana and a lighter in appellant’s jacket, the officers had probable cause to arrest him. See Mapp, 476 F.3d at 1016. The officers then lawfully searched his car. See Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.”) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)). Arizona v. Gant does not change this result. See — U.S. —, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Clarifying the circumstances under which the police may search a vehicle incident to a recent occupant’s arrest, the Court held that police may lawfully search a vehicle where “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723.
As for appellant’s challenge to the affidavit in support of the search warrant issued to search his residence, appellant has not met his burden under the test set forth in Franks v. Delaware. See 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To successfully challenge an affidavit, appellant “must show that (1) the affidavit contained false statements; (2) the statements were material to the issue of probable cause; and (3) the false statements were made knowingly and intentionally, or with reckless disregard for the truth.” United States v. Richardson, 861 F.2d 291, 293 (D.C.Cir.1988) (per curiam) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). Walters argues that the testifying officer failed to include evidence that he lived in Maryland, rather than at the District of Columbia residence searched pursuant to the warrant. The Government does not challenge the District Court’s conclusion that the affidavit for the search warrant should have included the information about Walters’ address in Maryland. Appellee’s Br. at 24; Walters, 563 F.Supp.2d. at 53. But, as the District Court found, Walters has not demonstrated that inclusion of the omitted information would have defeated probable cause. See United States v. Spencer, 530 F.3d 1003, 1007 (D.C.Cir.2008).
*155Pursuant 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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41.
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SUMMARY ORDER
Plaintiffs K.H. and E.H. appeal an award of summary judgment in favor of defendants (collectively, the “School District”), whom plaintiffs allege failed to provide their son C.H. with an appropriate public education and discriminated against him based on disability, violating the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983. We assume familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Timeliness
Plaintiffs claim the district court erred in rejecting as untimely their IDEA claims based on the 2001-02 and 2002-03 school years. They do not dispute that those claims accrued no later than September 5, 2002, or that they commenced this action by requesting a due process hearing on May 10, 2004. Rather, they argue that the applicable time limit is not one year, as the district court concluded, but four years, under the federal “catch-all” statute, 28 U.S.C. § 1658(a). In the alternative, they assert that the School District failed to advise them of their rights, so that a three-year limit applies. They also argue that the School District misled them as to the applicable limit, and is therefore es-topped from arguing that their claims are untimely.
Because plaintiffs’ argument urging application of 28 U.S.C. § 1658 was not raised below, we would generally treat it as waived. See Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir.2000). Even if plaintiffs could clear this procedural hurdle, however, their argument fails on the merits. As to claims arising before the IDEA was amended, effective July 2005, to include a two-year statute of limitations, “the applicable limitations period [is] determined with reference to the most appropriate or analogous state statute of limitations.” Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 n. 7 (2d Cir.2008) (internal quotation marks omitted). We detect no error in the district court’s affir-mance of the State Review Officer’s (“SRO”) adoption of the one-year period specified in the New York Human Rights Law. E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., Nos. 1:05-CV-972, 1:06-CV-713, 2008 WL 3930028, *8 (N.D.N.Y. Aug. 21, 2008). Plaintiffs do not claim that another state law is more closely analogous.
Nor have plaintiffs shown that the School District failed to advise them of their rights or misled them as to the applicable time limit. Plaintiffs point to a Procedural Safeguards Notice prepared by the New York State Education Department and provided to them by the School District, which states as follows:
You have the right to submit a written complaint.... The alleged violation *159must have occurred not more than one year prior to the date of the complaint:
* unless the violation is continuing; or
* the complaint is requesting compensation services. This only applies to alleged violations that occurred not more than three years prior to the date of the complaint.
Plaintiffs claim they alleged a continuing violation, and they read this notice to apply a three-year limit in such a case. We are not persuaded. While not a model of clarity, the notice states that the normal limit is one year, and that a three-year limit applies only where “compensation services” are at issue, which plaintiffs do not assert. We therefore affirm the holding of the district court that plaintiffs’ claims based on the 2001-02 and 2002-03 school years are untimely.
2. Free Appropriate Public Education
Plaintiffs contend that in 2003-04 and 2004-05, defendants denied C.H. the “free appropriate public education” (“FAPE”) to which he is entitled under the IDEA. See 20 U.S.C. § 1400(d)(1)(A). We review de novo the district court’s grant of summary judgment, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009), mindful that the IDEA offers no “invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review,” and that courts “lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy,” Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks omitted); accord Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112-13 (2d Cir.2007).
a. Classroom Placement
Plaintiffs contend the School District denied C.H. a FAPE by offering him classroom placements inappropriate to his needs. C.H.’s 2003-04 individualized education program (“IEP”) provided for a 12:1:3 classroom,1 and his 2004-05 IEP provided for a 12:1:2 classroom and a one-on-one aide. Plaintiffs contend that C.H. required a classroom limited to six students, or, at a maximum, eight, and that such a placement was mandatory under New York regulations, which cap class size at six for students -with “highly intensive” needs “requiring a high degree of individualized attention and intervention,” N.Y. Comp.Codes R. & Regs. tit. 8, § 200.6(h)(4)(ii)(a), and at eight for students with “intensive” needs, id. § 200.6(h) (4) (ii) (b). They cite recommendations for a six-student placement by a psychiatrist, C.H.’s pediatrician, and Dr. Alison Curley, a pediatric neuropsychologist.
Upon a thorough examination of the record, and exercising our “strictly limit[ed]” review, D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir.2005), we identify no error in the ruling of SRO Paul Kelly as to the 2003-04 placement. Application of a Child with a Disability, No. 04-110. SRO Kelly found that C.H.’s needs were not “highly intensive” for purposes of the regulations cited above. Id. at 10 (citing N.Y. Comp.Codes R. & Regs, tit. 8, § 200.6(g)). Notwithstanding the use of the phrase “intensive needs” in an IEP prepared for C.H. on July 18, 2001, see Appellants’ Br. at 10, we defer to SRO Kelly on this question requiring specialized knowledge, see Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. at 208, 102 S.Ct. 3034. We likewise defer to his conclusion, based on the *160testimony of an independent psychologist and on data regarding other students in the classroom to which defendants proposed to assign C.H., that the six-person classroom requested by plaintiffs would not have been the “least restrictive environment” the statute requires. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d at 108.
Nor do we detect error in the ruling of SRO Joseph Frey as to the 2004-05 placement. See Application of a Child with a Disability, No. 05-128. Considering each element of C.H.’s IEP, and noting input from plaintiffs and the approval of clinicians familiar with C.H.’s needs, SRO Frey rejected the claim that C.H. required a 6:1:1 environment. Id. at 11-14. He acknowledged the view of Dr. Curley that a six-student classroom would be “best,” but accurately observed that the IDEA does not require school districts to provide “the ‘best’ possible placement that can be imagined ... so long as the district offers to provide an appropriate education, defined as one which allows the child to receive meaningful educational benefit.” Id. at 14; see Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir.1998). Thus we affirm the district court’s holding that the classroom placements proposed for C.H. in the 2003-04 and 2004-05 school years did not violate the IDEA.
b. Parent Participation
Plaintiffs claim defendants barred them from full participation in the development of C.H.’s IEPs, as the IDEA requires.2 See 20 U.S.C. § 1415(b)(1). The record reflects a robust, if acrimonious, dialogue between school personnel and plaintiffs, as well as plaintiffs’ participation in many meetings aimed at developing educational programming for C.H. Many of the incidents of which plaintiffs complain occurred during the 2001-02 and 2002-03 school years, and are beyond the scope of our review. The remainder are insufficient to demonstrate the denial of the active role to which plaintiffs were entitled. See T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 253 (identifying no IDEA violation where parents “meaningfully participated” in development of IEP); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 193 (2d Cir.2005) (identifying no violation where parents had “numerous opportunities to participate in meetings with respect to the identification, evaluation, and educational placement of the child” (internal quotation marks omitted)). Thus we identify no error, much less one capable of denying C.H. a FAPE.
c. Behavioral Interventions
Plaintiffs claim defendants violated the IDEA by omitting behavioral programming from C.H.’s IEPs. We are unpersuaded. “The IDEA requires that, in developing an IEP for ‘a child whose behavior impedes the child’s learning,’ the school district must ‘consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.’ ” A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir.2009) (quoting 20 U.S.C. § 1414(d)(3)(B)®). Curiously, plaintiffs’ main brief does not challenge the district court’s principal ruling on this issue: that SRO Frey erred in finding that defendants denied C.H. a FAPE when they failed to prepare a required functional behavioral assessment (“FBA”), behavioral intervention plan (“BIP”), or transition plan in a timely fashion. See E.H. v. Bd. *161of Educ. of Shenendehowa Cent Sch. Dist., 2008 WL 3930028, at *11; Application of a Child with a Disability, No. 05-128, at 9-10. Plaintiffs raise the issue only in their reply brief. Thus it is waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). What remains is the general claim that C.H.’s IEPs failed to address behaviors with the potential to impede his learning, e.g., his inability to use the toilet, to tolerate change, or to participate in activities with his teacher. With respect to the three areas mentioned, however, as well as other related areas, the 2003-04 and 2004-05 IEPs address C.H.’s needs, techniques his teachers can employ, and skills he should acquire. Thus plaintiffs’ general challenge is without merit.
3. Other Claims
Finally, plaintiffs fault the district court for dismissing their ADA, Rehabilitation Act, and § 1983 claims. Even if we were to conclude that the School District had violated the IDEA, such a violation, without more, would be insufficient to support a claim of disability-based discrimination under the ADA or Section 504 of the Rehabilitation Act. See E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 2008 WL 3930028, at *14. To make out a prima facie case under either of these statutes, a plaintiff must show “(1) that [he] is a qualified individual with a disability; (2) that the defendants are subject to [the relevant statute]; and (3) that [he] was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of [his] disability.” Harris v. Mills, 572 F.3d 66, 73-74 (2d Cir.2009). Plaintiffs have adduced no evidence that would support an inference of such prim a facie discrimination. Accordingly, we affirm the dismissal of plaintiffs’ discrimination claims. As for plaintiffs’ § 1983 claim, it lacks any factual basis other than the alleged discrimination, and is likewise dismissed.
We have reviewed plaintiffs’ remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
. This figure denotes the number of students (12), teachers (1), and aides (3).
. Though not discussed in the district court’s opinion, this allegation was included in plaintiffs' complaint. See Compl. ¶ 119.
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*163SUMMARY ORDER
Defendants-Cross-Defendants-Appellants Mark Gelfman, Gelfman International Enterprises, Inc., and Yanis Gelfman (“defendants”) appeal from the District Court’s memorandum and order entered December 22, 2008, which granted Plaintiffs-Cross-Defendants-Appellees Yuri and Dmitri Kuklachev’s (“plaintiffs”) motion for a preliminary injunction barring defendants from using the words “Moscow Cat Theatre,” “Moscow Cats Theatre,” or any confusingly similar name in connection with performances. On appeal, defendants argue that the District Court erred in the following respects: (1) by concluding that plaintiffs’ delay of approximately 18 months in seeking an injunction did not preclude a showing of irreparable harm; (2) by not holding an evidentiary hearing to resolve disputed issues of fact; (3) by improperly finding that plaintiffs (a) owned the mark in question based on prior use and (b) did not abandon that mark; and (4) by not imposing geographic limits on the injunction or requiring a more substantial bond. We assume the parties’ familiarity with the factual and procedural history of the case.
We review the District Court’s grant of a preliminary injunction for abuse of discretion. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 116 (2d Cir.2009); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citations, alterations, and quotation marks omitted)).
We hold that the District Court did not err in finding that plaintiffs’ delay was excusable based, in part, on “the need to investigate the nature of the infringement and to explore what legal recourse was possible” and further because of “the difficulty of locating suitable attorneys in the United States and also by the absence of immediate threat of harm, given that there were no shows scheduled after January 2008.” Kuklachev v. Gelfman, 629 F.Supp.2d 236, 251 (E.D.N.Y.2008). We also find no error in the remaining determinations of the District Court that defendants challenge. Substantially for the reasons stated in the District Court’s thorough and careful memorandum and order entered December 22, 2008, Kuklachev, 629 F.Supp.2d 236, the order of the District Court is AFFIRMED.
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ORDER
A petition for rehearing en banc having been filed by the Appellants, and the matter having first been referred as a petition for rehearing to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on September 15, 2009.
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SUMMARY ORDER
This summary order addresses only the appeal of Victor Manuel Adan Carrasco, docket 06-5739-cr.
In 2005, we considered appeals from Carrasco and his codefendants regarding the sentences they had received in district court. United States v. Magana, 147 Fed.Appx. 200 (2d Cir.2005). We rejected Car-rasco’s argument that the district court erred by denying his application for a minor role adjustment pursuant to U.S.S.G. § 3B1.2. Id. at 201. Pursuant to the consent of the parties, we remanded under United States v. Crosby, 397 F.3d 103 (2d Cir.2005). Magana, 147 Fed.Appx. at 202. On remand, the district court declined to resentenee Carrasco. United States v. Torres Teyer, 2006 WL 3511885 (S.D.N.Y. December 6, 2006). Carrasco now appeals. We assume the parties’ familiarity with the underlying facts and procedural history of the case, and the issues on appeal.
Carrasco argues that his sentence was substantively unreasonable. We disagree. “In conducting reasonableness review, we apply the familiar abuse-of-discretion standard of review.” United States v. Irving, 554 F.3d 64, 71 (2d Cir.2009)(internal quotation marks omitted). In order to determine if a sentence is substantively reasonable, “we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 132 (2d Cir.2006). The district court explicitly based Carrasco’s sentence on the factors set forth in Section 3553(a), determining that the sentence was warranted based on Carrasco’s involvement in a very large-scale drug distribution organization, and the fact that he had carried a gun as part of that involvement. See Torres Teyer, 2006 WL 3511885 at *11. We find no basis on which to conclude that the district court abused its discretion in this regard.
For the foregoing reasons, the judgment of the District Court as to Carrasco is hereby AFFIRMED. The appeals of Jorge Manuel Torres-Teyer, docket 06-5840-cr, and Oscar Moreno Aguirre, docket 07-0471-cr, are hereby de-consolidated from Carrasco’s appeal. We continue to reserve decision as to them.
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SUMMARY ORDER
Plaintiff Donald Zedanovich (“plaintiff’) appeals from the March 4, 2009 judgment, amended by a March 13, 2009 judgment, of the District Court dismissing plaintiffs complaint, adopting the Report and Recommendation (“R&R”) of Magistrate Judge Gustave J. DiBianco dated February 6, 2009, and thereby affirming the decision of the Commissioner of the Social Security Administration denying plaintiffs application for disability benefits. On appeal plaintiff argues, inter alia, that the District Court erred in upholding the determinations made by the Administrative Law Judge (“ALJ”) because the ALJ erred in failing to elicit testimony from a vocational expert to address plaintiffs non-exertional limitations. We assume the parties’ familiarity with the facts and procedural history of the case.
The law of our Circuit on when the Commissioner must introduce testimony of a vocational expert is clear:
[Sjole reliance on the [g]rid[s] may be precluded where the claimant’s exertional impairments are compounded by significant nonexeriional impairments that limit the range of sedentary work that the claimant can perform. In these circumstances, the Commissioner must introduce the testimony of a vocational expert (or other similar evidence) *246that jobs exist in the economy which claimant can obtain and perform.
Butts v. Barnhart, 888 F.3d 877, 383-84 (2d Cir.2004) (quoting Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.1999)) (emphasis added). In other words, the mere existence of a non-exertional impairment does not alone trigger the need for vocational expert testimony. Rather, once the ALJ determines that a plaintiff does in fact suffer from non-exertional impairments, the ALJ must then determine whether those impairments are “significant” and “limit the range of sedentary work that the claimant can perform.” Id.
As the Magistrate Judge noted in the instant case, the ALJ “carefully analyzed plaintiffs nonexertional impairments and determined that there was no significant limitation in the range of unskilled sedentary work that plaintiff could perform.” (App’x 32) (emphasis in original). The ALJ’s determination was supported by substantial evidence.
We have reviewed each of plaintiffs claims on appeal and find them to be without merit. Substantially for the reasons stated by the Magistrate Judge in his careful and thoughtful R & R, adopted by the District Court, see Zedanovich v. Comm’r of Soc. Sec., No. 3:06-cv-1403, 2009 WL 577763 (N.D.N.Y. Mar.4, 2009), the March 4, 2009 and March 13, 2009 judgments of the District Court are AFFIRMED.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the District Court.
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OPINION
PER CURIAM.
Christopher Wills, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Middle District of Pennsylvania dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and an order denying his motion for reconsideration. We will affirm.
In 2001, Wills was convicted in the United States District Court for the Eastern District of Virginia of kidnapping resulting in death in violation of 18 U.S.C. *303§ 1201(a)(1) and interstate stalking resulting in death in violation of 18 U.S.C. § 2261A. Wills was sentenced to life in prison without parole. The United States Court of Appeals for the Fourth Circuit affirmed Wills’s conviction on direct appeal and the United States Supreme Court denied his petition for a writ of certiorari.
In 2006, the United States District Court for the Eastern District of Virginia denied Wills’s motion to vacate sentence pursuant to 28 U.S.C. § 2255. The Fourth Circuit Court of Appeals denied Wills’s request for a certificate of appealability and the United States Supreme Court denied his petition for a writ of certiorari. In 2007, Wills filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania, which the District Court construed as a successive § 2255 motion and dismissed for lack of jurisdiction. We dismissed Wills’s subsequent appeal because it was untimely filed. See C.A. No. 08-1933.
In 2009, Wills filed another habeas petition in District Court pursuant to § 2241 claiming, as he had in 2007, that his conduct did not satisfy the federal jurisdictional element of the kidnapping statute because he did not accompany his victim across state lines. Wills argued that a 2006 amendment to the statute expanded federal jurisdiction to reach his conduct, which involved deceiving his victim to voluntarily travel across state lines to seek a purported job opportunity.1 Wills maintained that he could seek relief under § 2241 under our decision in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). The District Court disagreed that Wills could seek relief under § 2241 and dismissed his habeas petition for lack of jurisdiction. The District Court also denied Wills’s motion for reconsideration. This appeal followed.
As recognized by the District Court, motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences. Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). Although a petitioner may challenge a conviction pursuant to § 2241 where a § 2255 motion would be “inadequate or ineffective,” a § 2255 motion is not inadequate or ineffective because the sentencing court denies relief or because the petitioner is unable to meet the gatekeeping requirements of § 2255. Cradle v. United States, 290 F.3d 536, 538-39 (3d Cir.2002) (per curiam). Rather, a § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. Id. at 538.
Wills has not made such a showing. Wills litigated pre-trial the issue of whether the facts alleged in the indictment satis*304fied the jurisdictional element of the kidnapping statute. See United States v. Wills, 234 F.3d 174, 179 (4th Cir.2000) (holding that the fact that Wills willfully caused unaccompanied travel over state lines was sufficient to confer federal jurisdiction under 18 U.S.C. § 1201(a)(1)). Wills raised the issue again on direct appeal, United States v. Wills, 346 F.3d 476, 487 (4th Cir.2003), and in his § 2255 proceedings. The fact that Wills was unsuccessful or may be barred from filing a second § 2255 motion does not render § 2255 inadequate or ineffective.
We agree with the District Court that this case is distinguishable from In re Dorsainvil, 119 F.3d at 248, in which we held that the petitioner could raise a claim under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), in a habeas petition pursuant to § 2241. The petitioner in Dorsainvil had no earlier opportunity to challenge his conviction for a crime that the intervening change in substantive law in Bailey may have negated. Id. at 251.2 Unlike in Dorsainvil, the 2006 amendment to § 1201(a)(1) is not an intervening change in substantive law that may have negated the crime for which Wills is incarcerated. To the contrary, Wills concedes that his conduct is covered by the amended statute.
Because this appeal does not raise a substantial question, we will summarily affirm the District Court’s orders.3
. The statute in effect at the time of Wills's offense defined kidnapping as:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when — (1) the person is willfully transported in interstate or foreign commerce;
18 U.S.C. § 1201(a)(1) (1998). The statute, as amended in 2006, defines kidnapping as:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when — (1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;
18 U.S.C. § 1201(a)(1) (2006).
. In Bailey, the Supreme Court held that a defendant could not be convicted of using a firearm during and in relation to a drug-trafficking crime under 18 U.S.C. § 924(c)(1) unless the government proved that the defendant "actively employed the firearm during and in relation to the predicate crime.” Dorsainvil, 119 F.3d at 247 (citation omitted).
. Wills's request for appointment of counsel is denied.
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OPINION
PER CURIAM.
Mark Nixon, a state prisoner proceeding pro se, appeals from the District Court’s order dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, we will vacate and remand for further proceedings. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In February 2005, Nixon was found guilty in the Allegheny Court of Common Pleas of narcotics violations, and the court sentenced him to a five- to ten-year sentence. In December 2005, Nixon filed a PCRA petition for post-conviction relief. The PCRA court denied Nixon’s PCRA petition, and the Superior Court affirmed the denial. On October 18, 2007, the Pennsylvania Supreme Court denied Nixon’s request for allowance of appeal.
In February 2009, Nixon filed the instant habeas petition in District Court, alleging ineffective assistance of counsel, violation of double jeopardy, use of evidence obtained pursuant to an unlawful arrest, and use of an unconstitutionally selected grand jury. The District Court referred the petition to a Magistrate Judge, who issued a report recommending the dismissal of the petition as time-barred by the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The report, dated July 29, 2009, granted the parties until August 17, 2009, to file objections. On August 20, 2009, 2009 WL 2595680, the District Court adopted the Magistrate Judge’s report and denied Nixon’s habeas petition sua sponte on limitations grounds.
Four days later, on August 24, 2009, the District Court received Nixon’s motion for extension of time to file objections to the Magistrate Judge’s report. Nixon had handed this motion to prison officials on August 14, 2009. On August 27, 2009, the District Court denied Nixon’s motion as moot. Nixon appeals from the District Court’s August 20 order denying his habe-as petition. We granted a certificate of appealability to consider whether the District Court erred in summarily dismissing Nixon’s petition sua sponte on limitations grounds.
II.
We conclude that the District Court erred in dismissing Nixon’s petition on timeliness grounds without affording Nixon an adequate opportunity to file objections to the Magistrate Judge’s Report and Recommendation. While a District Court possesses the authority to raise AEDPA’s statute of limitations sua sponte, a habeas *306petitioner must first be afforded fair notice and an opportunity to be heard on the issue of timeliness and equitable tolling. See Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); United States v. Bendolph, 409 F.3d 155, 168 (3d Cir.2005) (en banc). AEDPA’s limitation period is subject to equitable tolling, so notice and opportunity might also require fact finding if a petitioner advances arguments for equitable tolling. See Miller v. N.J. Dep’t. of Corr., 145 F.3d 616, 617-18 (3d Cir.1998).
Here, the Magistrate Judge sua sponte raised the issue of AEDPA’s statute of limitations in his report. The District Court notified Nixon of the timeliness issue by mailing him a copy of the report. Theoretically, Nixon was afforded an opportunity to respond, as he was granted seven days from the date of service to file his objections. During that seven-day window, Nixon filed a motion for extension of time to file objections to the report. However, while his motion was dated on August 14, 2009, the District Court did not receive the motion until August 24, 2009. When the court received his timely filed motion,1 the District Judge had already adopted the Magistrate Judge’s report and dismissed the petition on timeliness grounds. Thus, Nixon was never afforded an adequate opportunity to file his objections to the report.
Accordingly, we will vacate the District Court’s order and remand. On remand, the District Court is directed to allow Nixon to file objections to the Magistrate Judge’s report, and thereafter to conduct any further proceedings consistent with this opinion.
. A pro se petitioner's motion is treated as served at the time it is delivered to the prison officials. See Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988).
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OPINION
PER CURIAM.
Petitioner Vitaliy Ivanovich Andreyev seeks review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The Government has moved to summarily affirm the BIA’s decision. Because the appeal presents no substantial question, we will grant the motion and deny Andreyev’s petition.
I.
Andreyev is a native and citizen of Ukraine who entered the United States in 1996 as' a non-immigrant visitor and remained in the United States after the expiration of his visa. In March 2009, the Department of Homeland Security initiated removal proceedings against Andrey-ev for remaining in the United States without authorization. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B). Andreyev appeared before an Immigration Judge, and elected to proceed pro se. After finding that Andreyev was not eligible for any relief from removal, the Immigration Judge ordered him removed from the United States to Ukraine. Andreyev appealed the Immigration Judge’s decision to the BIA, arguing that he was deprived of due process because he was not given an opportunity to argue his eligibility for discretionary relief from removal, including asylum. The BIA conducted a de novo review and affirmed the Immigration Judge’s decision, finding that Andreyev had been provided with a full and fair hearing, and that he had failed to provide a factual basis to support a claim for asylum, withholding of removal, or cancellation of removal.
Still proceeding pro se, Andreyev filed a motion to stay removal proceedings in this Court, arguing chiefly that his removal proceeding was fundamentally unfair because he was deprived of his right to be referred to an asylum officer for a “reasonable fear determination” pursuant to 8 C.F.R. § 1208.31. Andreyev also argues that he was not informed of his potential eligibility for asylum, withholding of removal, or cancellation of removal, and that the Immigration Judge and BIA failed to evaluate these claims on the merits. The Government has moved for summary affir-mance of the BIA’s decision.1 Andreyev has filed no opposition.
II.
We have jurisdiction to review a final order of removal under INA § 242(a). Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Because the BIA issued its own opinion, we review its decision rather than that of the Immigration Judge. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we review the decision of the Immigration Judge to the extent that the BIA defers to or adopts the Immigration Judge’s reasoning. See Chavarria, 446 F.3d at 515. We review factu*308al determinations of the BIA under the deferential substantial evidence standard. Id. Under the substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). Our review over the BIA’s conclusions of law is plenary. Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.2006).
III.
Andreyev argues that he was deprived of a fair opportunity to present his claims for immigration relief. In the immigration context, due process entitles an alien to “a full and fair hearing and a reasonable opportunity to present evidence.” Romanishyn, 455 F.3d at 185. The record reveals no violation of due process. See Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir.2006). Andreyev was informed by the Immigration Judge of his right to retain counsel and was provided with a list of low cost and pro-bono legal services providers. A.R. 61-62. The Immigration Judge offered Andreyev a continuance in order to retain counsel, and Andreyev elected to proceed pro se. A.R. 62. Andreyev’s rights of evidence and appeal were explained to him, and he was given the opportunity to address the court. A.R. 62, 65. The Immigration Judge also questioned Andreyev to ensure that he had no viable claims for relief. A.R. 64-65. For these reasons, we reject Andreyev’s due process claim.
Andreyev next argues that pursuant to 8 C.F.R. §§ 1208.31 and 1238.1, he should have been referred to an asylum officer for a “reasonable fear determination” to establish his eligibility for asylum. This requirement is applicable only to individuals who have been ordered removed for committing an aggravated felony pursuant to INA § 238(b). Andreyev was charged with removability under INA § 237(a)(1)(B) for overstaying his visa. Nothing in the record suggests that An-dreyev was ordered removed in connection with a felony conviction, or that he is otherwise entitled to a “reasonable fear determination” pursuant to 8 C.F.R. § 1208.31. Furthermore, because Andrey-ev was placed in removal proceedings before he filed any applications for immigration relief, the proper official to adjudicate any applications would have been an immigration judge and not an asylum officer. See 8 C.F.R. §§ 208.2(b), 208.4. The Immigration Judge in this case did in fact consider whether Andreyev had any basis for immigration relief, and found that he did not. The BIA also considered these claims, and made a de novo determination that Andreyev had failed to provide a proper factual basis for a claim for asylum, withholding of removal, protection under the Convention Against Torture, or cancellation of removal. Nothing in the record suggests that the BIA erred in reaching its conclusion.
In his declaration on appeal to the BIA, Andreyev stated that he came to the United States in 1996 due to mounting concerns about mass unemployment, poverty, and corruption in his native Ukraine. A.R. 10-11. He also stated that he became afraid after two friends of his were beaten by law enforcement for failure to pay their debts. A.R. 10. Andreyev has been living and working in the United States for over ten years, and contends that if he is removed to the Ukraine he will be homeless because he has no money, no job, and no family there, a fate he considers tantamount to suicide. Andreyev’s circumstances, although regrettable, do not constitute a basis for asylum or withholding of removal, which require a showing of persecution on account of membership in a particular social group. See Matter of Acosta, *30919 I. & N. Dec. 211, 233-34 (BIA 1985); Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998). Poverty and homelessness, while “appealing to sympathy and compassion,” are “far too vague and all encompassing to be characteristics that set .the perimeters for a protected group within the scope of the Immigration and Naturalization Act.” Escobar v. Gonzales, 417 F.3d 363, 368 (3d Cir.2005); see also Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir.2003). The BIA reasonably concluded from the evidentiary record that Andreyev failed to establish membership in a particular social group, and was therefore ineligible for asylum. See 8 U.S.C. § 1101(42)(A); Lukwago, 329 F.3d at 170 (denying asylum where alien could not demonstrate that he was targeted because of membership in a particular social group).
Likewise, Andreyev’s anticipated poverty is insufficient to establish eligibility for withholding of removal under the Convention Against Torture. See 8 C.F.R. § 208.18(a)(1); see also Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir.2008) (en banc) (holding that suffering attributable to the “unfortunate but unintended consequences of the poor conditions” in the country of removal is not “torture” under CAT). The BIA also correctly found that Andreyev failed to demonstrate that he had a qualifying United States citizen or lawful permanent resident relative to establish eligibility for cancellation of removal. See 8 U.S.C. § 1229b(b). Andreyev’s companion possesses a green card, but he is not legally married to her. To establish eligibility for cancellation of removal through a spouse, the marriage must be legally valid. See So Chun Chung v. INS, 602 F.2d 608, 610 (3d Cir.1979).2 There is nothing in the record to suggest that An-dreyev has any other qualifying relatives.
Although we appreciate Andreyev’s strong desire to remain in the United States, the BIA committed no legal error in reaching its conclusion that Andreyev is not eligible for immigration relief. Accordingly, we will grant the Government’s motion for summary action and deny An-dreyev’s petition for review. See Third Circuit LAR 27.4; I.O.P. 10.6. There is no substantial question on appeal. See Nken v. Holder, — U.S. —, 129 S.Ct. 1749, 1761, 173 L.Ed.2d 550 (2009).
. Although the Government filed a motion seeking what it called “summary affirmance” of the BIA's decision, the Court understands the Government actually to be seeking a summary denial of Andreyev’s petition for review.
. At the hearing before the Immigration Judge, Andreyev referred to his companion as his common law wife. A.R. 64. Andreyev did not argue to the BIA that he had satisfied any state's legal requirements for establishing a common law marriage, however. See Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir.2003) (noting that the consequences of nonexhaustion are jurisdictional).
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OPINION
BARRY, Circuit Judge.
These appeals emanate from a lengthy drug trafficking trial at which numerous defendants were convicted. In this opinion, we will address the challenges of Arse-nio Arzola (“Arsenio”) and his brother Mi-sael Arzola (“Misael”) to their respective convictions for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), the sole issue upon which we heard oral argument. After having carefully considered those challenges, as well as defendants’ other challenges to their convictions and sentences, we will affirm.1
I.
Because we write solely for the parties’ benefit, we set forth only those facts necessary to our analysis of the one issue we will discuss.
At trial, the prosecution presented powerful evidence of a vast drug trafficking conspiracy ranging from October 1999 to June 2005. The evidence included the testimony of numerous cooperating witnesses; *311substantial police surveillance of drug transactions (both large and small); testimony regarding controlled purchases; hundreds of recorded conversations by and among the defendants; and physical evidence seized during an early morning raid of the conspiracy’s stash houses and the defendants’ residences, including substantial quantities of cocaine; drug paraphernalia such as cutting agents, scales, and drug ledgers; guns; and thousands of dollars in cash.
The prosecution presented highly damaging evidence concerning Arsenio and Mi-sael’s involvement in this drug trafficking conspiracy, including their involvement in a number of large drug transactions. We recount here only evidence that is relevant to the one issue we address in this opinion.
One relevant event occurred on May 25, 2005. On that date, co-conspirators Jose Reyes and Ruben Soto sold three kilograms of cocaine to the Arzolas for over $66,000. That evening, after exiting one of the conspiracy’s Jersey City stash houses, Arsenio and Misael became aware of police surveillance. Misael called his girlfriend who was “home” and twice told her to “hide” “the toy,” a thinly veiled request for her to conceal his gun.
The investigation came to a head on June 30, 2005, when law enforcement executed search and arrest warrants at the defendants’ residences and the conspiracy’s stash houses. At approximately 5:40 a.m., law enforcement officers in plainly marked clothing executed a no-knock warrant at Arsenio’s residence. As law enforcement was breaking a security gate outside his residence, Arsenio was spotted in an upstairs window, through which he presumably saw the raid. Then, as law enforcement began to open the residence’s exterior door with a battering ram, two shots were fired from a .38 caliber gun from within the residence towards the exterior door. Officers entered the residence, arrested Arsenio, and seized over $5,373 in cash and the recently fired gun.2
Simultaneously, law enforcement executed a warrant at Misael’s apartment. There, in his bedroom, was found a loaded .380 caliber gun located beneath a night stand, $5,950 in cash, and 20.69 grams of cocaine in a jacket pocket.
Both Arsenio and Misael were convicted of conspiring to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a) & (b) and 21 U.S.C. § 846. Neither challenges the sufficiency of the evidence underlying those convictions. They were also convicted of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), and Arsenio was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).3
II.
Arsenio and Misael challenge the sufficiency of the evidence underlying their convictions for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). We exercise plenary review of those challenges. United States v. Bornman, 559 F.3d 150, 152 (3d Cir.2009). In so doing, “we examine the totality of the evidence, both direct and circumstantial, and must credit all available inferences in favor of the government.” United States v. Sparrow, 371 *312F.3d 851, 852 (3d Cir.2004) (quotation omitted). We are mindful that “[i]t is not for us to weigh the evidence.” United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir.1989). Rather, we must affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). A defendant’s burden on a sufficiency challenge “is extremely high.” United States v. Lore, 430 F.3d 190, 203 (3d Cir.2005).
To establish that a defendant possessed a firearm in furtherance of a drug trafficking crime, the government is required to prove that the defendant: (1) participated in an enumerated offense; (2) possessed the firearm; and (3) that the possession was “in furtherance of’ the drug trafficking crime. Only the third element is disputed here.
The possession “in furtherance of’ standard of 18 U.S.C. § 924 has limits. “Under § 924(c), the mere presence of a gun is not enough. What is instead required is evidence more specific to the particular defendant, showing that his or her possession actually furthered the drug trafficking offense.” Sparrow, 371 F.3d at 853. “Put another way, the evidence must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime.” Id.; see also H.R.Rep. No. 105-344, at 12 (1997) (noting that prosecution must “clearly show that a firearm was possessed to advance or promote the commission of the underlying offense”).
In Sparrow, we enumerated a nonexclusive list of eight relevant factors for a court to consider in reviewing a sufficiency challenge to a § 924(c) conviction. Specifically, a court must consider:
the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.
Sparrow, 371 F.3d at 853 (quotation omitted); accord United States v. Iglesias, 535 F.3d 150, 157 (3d Cir.2008).
With respect to Arsenio, nearly all of the Sparrow factors demonstrate that his possession of the .38 caliber gun was in furtherance of the drug trafficking conspiracy. First, the evidence amply demonstrated that Arsenio was engaged in a massive drug trafficking conspiracy involving the regular movement of kilos of cocaine and thousands of dollars. Again, neither Arsenio nor Misael has challenged the sufficiency of the evidence underlying their drug trafficking conspiracy convictions. In short, Arsenio was, by no means, a recreational or casual participant in the underworld of drug trafficking.
Second, the gun fired on June 30, 2005 was readily accessible to Arsenio, a fact he does not dispute. (Arsenio Br. at 19.) Indeed, in the moments between when he witnessed law enforcement breaching his security gate to when the officers began to batter down his door, the gun was accessed and twice fired at the exterior door. That timeline indicates that the gun was strategically located so as to be immediately retrievable for Arsenio to protect himself, his criminal proceeds, and the continuing viability of the drug trafficking conspiracy. And it was the same gun Ar-senio had with him during at least one drug transaction with Nelson Reyes.
Third, the gun was a semi-automatic handgun, not an antique musket nor a *313hunting rifle. Fourth, Arsenio concedes that his possession of the gun was illegal because he was a convicted felon. (Id.) Fifth, as Arsenio again concedes, the gun was loaded. (Id.) Sixth, and finally, the gun was found in proximity to over $5,000 in cash, which the jury could permissibly infer was the proceeds of drug transactions due to the nature of Arsenio’s illicit business and the dearth of evidence of any legitimate income.
We are not moved by the fact that no drugs were seized at Arsenio’s residence. Although the usual § 924(c) conviction involves the seizure of a firearm in relative proximity to drugs, this factor — or any other single factor — is not required under Sparrow. See 371 F.3d at 853. Moreover, the prosecution elicited testimony that drug dealers typically do not store their inventory at them residences, but rather, as here, use stash houses for that purpose. Accordingly, the absence of drugs in Arse-nio’s residence, in which small children were present, does not undermine the jury’s conclusion that he possessed the gun in furtherance of a drug trafficking conspiracy.
The jury permissibly concluded that Ar-senio’s gun furthered his vast drug trafficking conspiracy — the only element in dispute — by protecting him, a central participant in the conspiracy, and the conspiracy’s proceeds. Arsenio concedes that he bears a “heavy burden” in challenging the sufficiency of the evidence supporting a conviction. (Arsenio Br. at 17.) He has not met that burden here.
We will similarly affirm Misael’s conviction for possession of a firearm in furtherance of a drug trafficking conspiracy. Like his brother, Misael was engaged in a conspiracy that led him to handle drugs on a regular basis, resulting in hundreds of thousands of dollars in criminal proceeds. Also like his brother, Misael’s gun was readily accessible, located underneath a night stand in the bedroom of his apartment, not stowed away in a secret compartment nor secured under lock and key. Again, like his brother, his gun was a loaded, semiautomatic handgun located in close proximity to $5,950 in cash, which the jury could properly infer — and which we must assume inferred — was the proceeds of the drug conspiracy.
Misael’s firearm possession differs from Arsenio’s in that Misael’s gun was in the same bedroom as 20.69 grams of cocaine, thus placing the gun in close proximity to drugs (and he was not a convicted felon). Importantly, evidence adduced at trial proved that Misael dealt in quantities of twenty to thirty grams of cocaine. For example, Rafalito Bello, a cooperating witness, testified that he regularly purchased quantities of twenty to thirty grams of cocaine from Misael. Moreover, in April 2005, law enforcement coordinated two controlled sales of cocaine from Misael to a confidential source. In both controlled sales, the confidential source purchased roughly thirty grams of cocaine from Misa-el for $600. Accordingly, the jury could permissibly infer that the drugs seized in the bedroom mere steps from the loaded gun were in fact Misael’s drugs ready for distribution. And, of course, Misael’s May 25, 2005 phone call to his girlfriend, imploring her to hide the “toy” (which the jury could permissibly infer was the same gun later seized in his bedroom) demonstrated a consciousness of guilt indicating that he possessed the gun to protect the drug conspiracy.
At the end of the day, both Arsenio and Misael face a “highly deferential” standard *314of review in challenging the sufficiency of the evidence underlying their § 924(c) convictions. See Bornman, 559 F.3d at 152. Indeed, a rational juror can certainly have concluded that, by possessing guns, Arsenio and Misael were advancing and promoting their criminal enterprise by protecting themselves (both central participants in the conspiracy), protecting the proceeds of their criminal activity, and, in the case of Misael, protecting drugs themselves.4
III.
We will affirm the judgments of sentence.
. In a separate opinion, we note and reject the challenges of their co-defendants.
. Nelson Reyes (no relation to Jose Reyes), a cooperating witness, testified that he saw Ar-senio with the .38 caliber gun at one of the stash houses when he purchased cocaine from Arsenio.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Arsenio further contends that:
(1) there was insufficient evidence to establish a connection between the discharge of the gun and a drug-trafficking crime for purposes of applying a ten-year mandatory term;
(2) his sentence was procedurally and substantively unreasonable due to myriad errors;
(3) the prosecution failed to establish the fact of a prior conviction for purposes of applying 21 U.S.C. § 841 (b)( 1 )(A)(ii);
(4) the plain language of 18 U.S.C. § 924(c)(1)(A) precludes the application of a consecutive ten-year mandatory minimum;
(5) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires the jury to make a drug quantity finding; and
(6) his constitutional rights were violated by the application of a ten-year consecutive mandatory minimum absent a jury finding with respect to the discharge of his firearm.
Misael also contends that:
(1) there was insufficient evidence to support the weight of cocaine attributed to him;
(2) the prosecution improperly commented on defense counsel’s ethics and integrity;
(3) the prosecution improperly vouched for a government witness;
(4) his right to remain silent was violated;
(5) the cumulative effect of the trial errors denied him a fair trial;
(6) the District Court abused its discretion in denying him a hearing to challenge the weight of cocaine attributed to him; and
(7) the District Court misunderstood its discretion in sentencing him.
We have carefully reviewed the record and considered these issues. Each issue is without merit, and is rejected without further discussion.
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OPINION
PER CURIAM.
Petitioners Aleksander Nilaj and Mire Preldakaj, husband and wife, seek review of the Board of Immigration Appeals’ (“BIA”) final order dismissing their appeal of the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Nilaj and Preldakaj are natives and citizens of Albania.1 In October 2006, they attempted to enter the United States pursuant to the Visa Waiver Program2 by presenting fraudulent passports, whereupon they requested asylum and withholding of removal based on past political persecution and fear of future persecution, as well as relief under the CAT. After a credible fear interview, the Department of Homeland Security commenced asylum-only proceedings by filing a Notice of Referral with the immigration court.
At an October 2007 immigration hearing, Nilaj testified that he began supporting the Democratic Party of Albania in 1990, *316but that he did not become a registered party member until 1991. In December 1990, he participated in a protest in the city of Shkoder to remove a statue of Stalin. In an effort to disperse the crowd, police began beating protestors with rubber sticks and Nilaj sustained an injury to his back. In March 1992, the Democratic Party won the national election. Following the election, Nilaj testified that he did not experience any further problems until 1997, when the Socialist Party gained power in the national election. Nilaj testified that he began to receive threats and was publicly warned to leave the Democratic Party. In April 1999, during a political rally in which Nilaj participated, police began shooting into the crowd and Nilaj sustained a gun shot wound to his finger. Following that incident, Nilaj continued to receive threats warning him to leave the Democratic Party.
In December 1999, he left Albania for the United Kingdom seeking political asylum. After being denied asylum in the United Kingdom, Nilaj returned to Albania in 2004 and resumed participating in the activities of the Democratic Party. Nilaj testified that in July 2005, shots were fired into his home. No one was injured. Although he reported the incident to police, they refused to take action. In July 2005, the Democratic Party won the national election and Nilaj testified that he did not experience any harm for nearly a year. However, in May 2006, while returning home alone, four individuals attacked him. Although Nilaj could not identify his attackers, he recalled them telling him to leave the country, threatening to kidnap his wife, and calling him a “Democratic Pig.” Nilaj’s sustained a head wound during the attack, but did not seek medical attention or contact the authorities. Nilaj testified that this incident prompted him to leave Albania and seek asylum in the United States. He did not leave Albania until September 2006, however, and admitted that he did not receive any additional threats prior to leaving.
Dr. Bernd Fischer, a professor of Balkan history at Indiana University and an expert on country conditions in Albania, testified on Nilaj’s behalf as well as submitted an affidavit into the record. Dr. Fischer testified that he did not think it was a real possibility that Nilaj could return to his native town of Vulkil and that he would have a hard time remaining inconspicuous. Dr. Fischer also testified that he believed that Democratic Party members are still at risk for harm in Albania, despite the party’s election to power, as members continue to be attacked. He also described the Albanian police as corrupt because many were hired during Socialist control of the country.
The IJ determined that Nilaj testified credibly, but nonetheless found that based on the evidence presented, he was unable to conclude that Nilaj suffered past persecution in Albania. In addition, the IJ determined that conditions in Albania had changed such that Nilaj did not have a well-founded fear of persecution if he were to return.
Nilaj appealed the IJ’s decision to the BIA and, in a July 2008 opinion, the BIA dismissed Nilaj’s appeal. The BIA determined that even if Nilaj had demonstrated past persecution, the Government demonstrated changed conditions such that Nilaj does not have a well-founded fear of future persecution. Specifically, the BIA found that the 2005 State Department Country Report submitted by the Government did not indicate any increased level of violence against members of the Democratic Party of Albania. Furthermore, the Country Report observed that the 2005 elections have aided in Albania’s democratic development. This petition for review followed.
*317II.
We exercise jurisdiction to review the BIA’s final order of removal under Immigration and Nationality Act (“INA”) § 242(a) [8 U.S.C. § 1252(a) ]. Because the BIA provided its own analysis, we review the decision of the BIA. See Lukwago v. Ashcroft, 329 F.3d 157, 166 (3d Cir.2003). We use a substantial evidence standard to review factual findings. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). Under the substantial evidence standard, findings are upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001).
An applicant may demonstrate eligibility for asylum by showing either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]. Significantly, “persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.
Nilaj contends that the IJ and BIA erred in concluding that he failed to demonstrate past persecution or a well-founded fear of future persecution. He first presents significant argument that the threats and violence that he experienced in Albania, both in the years before he left for the United Kingdom and after he re-
turned in 2004, when taken together, rise to the level of past persecution. However, even if we were to agree, we find that substantial evidence supports the BIA’s determination that even assuming past persecution, any presumption of a well-founded fear of future persecution is rebutted by a fundamental change in Albania’s country conditions. See 8 C.F.R. § 1208.13(b)(l)(i) (even if past persecution has been established, asylum can still be denied if “[tjhere has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality ... on account of ... political opinion.”).
As mentioned, in rendering its decision that Nilaj does not have a well-founded fear of future persecution, the BIA relied primarily on the Government’s presentation of the 2005 State Department Country Report for Albania. The BIA noted that the Country Report specifically observed that the 2005 election of the Democratic Party to power was “a step forward in the country’s democratic development.” (See Administrative Record 3.) Furthermore, even though Dr. Fischer opined that police corruption still persists in Albania, the County Report indicates that progress is being made in retraining police and prosecuting abuses. (Id) Moreover, there is no indication that the Socialist party, either through its own organization or through Government authorities, is engaged in a pattern of “abuse or coercion” against its political opponents. (Id.) The BIA therefore concluded that Nilaj had not established a well-founded fear of persecution.
A review of the record does not compel a contrary conclusion.3 See Zubeda v. *318Ashcroft, 333 F.3d 463, 477-78 (3d Cir.2003) (“Country reports ... are the most appropriate and perhaps the best resource for information on political situations in foreign nations.”); see also Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir.2008) (holding that rebanee on country reports was sufficient to rebut presumption of well-founded fear of future persecution based on support for Democratic Party in Albania). We therefore agree with the BIA’s conclusion that Nilaj is not entitled to asylum, and as a necessary corollary, is not entitled to withholding of removal. See Lukwago, 329 F.3d at 182. Finally, the BIA did not err when it concluded that Nilaj had not established a basis for relief under the CAT, as he did not demonstrate that it is more likely than not that he would be tortured if returned to Albania.
. Nilaj is the lead petitioner, and we thus will refer primarily to him throughout our Opinion.
. The Visa Waiver Program ("VWP”) is an expedited admission procedure that allows visitors from certain designated countries to enter the United States for up to ninety days without a non-immigrant visa if they meet certain requirements. See 8 U.S.C. § 1187(a); 8 C.F.R. § 217.2(a). The VWP is not limited to aliens who are actually nationals of the designated countries, but also includes individuals, like Nilaj and Preldakaj, who present fraudulent travel documents from such countries. See 8 C.F.R. § 217.4. In exchange for admission under the VWP, applicants must waive any right to administrative or judicial review of an immigration officer's determination as to admissibility, and any right to contest their removal after admission, except on the basis of an application for asylum. See 8 U.S.C. § 1187(b).
. Substantial evidence also supports the BIA's finding that Nilaj could avoid future persecution by relocating within Albania as two of his family members continue to reside in the country without incident. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). Although Nilaj makes the valid poinl that these two family members are not themselves Demo*318cratic activists, he has not shown that he, an admitted low-level member of the party, would be "singled out” for persecution should he relocate within the country. Id.
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*324OPINION
SMITH, Circuit Judge.
Plaintiff Eric Lekich appeals from the judgment of the United States District Court for the Eastern District of Pennsylvania entering summary judgment in favor of Defendants and against him on his claims of disability discrimination and retaliation under the Americans with Disabilities Act, Rehabilitation Act, and Pennsylvania Human Relations Act. We will affirm.
I.
Because we write only for the benefit of the parties, we presume familiarity with the facts and recite them only briefly. Eric Lekich is a 2006 graduate of the Municipal Police Officers’ Training Program of Montgomery County Community College. After graduation he interviewed with the Chief of Police of Doylestown Borough and received a conditional offer for a part-time police officer position. The Chief told Lekich that he had to return a physical evaluation form to the Police Department after having it filled out by two physicians, with whom appointments had already been made. The Chief also notified the Municipal Police Officers’ Education and Training Commission (“MPOETC”) that he had given Lekich an offer of employment conditioned on his passing the required tests. MPOETC then scheduled a written examination for Lekich.1
Lekich went to his physical examinations. The doctor performing the vision test indicated on the evaluation form that Lekich lacked normal color perception. Lekich returned the evaluation form to the Doylestown Police Department as he was instructed. A few days later he received a call from the Chief of Police that his conditional job offer was being withdrawn because of the vision test result. Because the conditional offer was withdrawn, the Doylestown Police Department never forwarded a packet on Lekich to MPOETC for processing.
Lekich then contacted MPOETC to inquire about retaking the vision test but was told he had no recourse. He nevertheless saw another doctor to retake the test. This doctor confirmed that Lekich had a color perception problem, but also stated it was minor and, in his opinion, would not interfere with Lekich’s working as a police officer.
Lekich then retained counsel and, through him, sought to have MPOETC either waive the vision requirement or consider the newer vision exam. MPOETC informed counsel that it was authorized only to process applications from police departments. Thus, it could do nothing for Lekich without his having an offer of employment and an application packet sent to MPOETC on his behalf. Lekich sent further information to MPOETC, but it took no further action.
Lekich filed this action seeking legal and equitable relief for Defendants’ alleged discrimination and retaliation against him. His Amended Complaint, after stipulating to the dismissal of two counts only as to one of the Defendants, asserted claims as follows: Count I asserted a claim under *325the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”), against Colonel Jeffrey B. Miller, in his official capacity as Chairman of MPOETC; Count II asserted a claim under the Rehabilitation Act, 29 U.S.C. §§ 701, et seq. (“BA”), against Colonel Miller in his official capacity and against Doylestown Borough; Count III asserted an equal protection claim under 42 U.S.C. § 1983 against Colonel Miller in his official capacity and against Doylestown Borough; and Count IV asserted a claim under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951, et seq. (“PHRA”), against Colonel Miller in his official capacity.
Cross motions for summary judgment followed, and the District Court granted both Defendants’ motions and denied Le-kich’s motion on all Counts. Lekich now appeals. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction under § 1291.
Lekich’s brief on appeal is silent as to his § 1983 claim, and as to all claims against Doylestown Borough. Thus, we consider only the ADA, RA, and PHRA claims, and then only as to Defendant Miller.2
II.
We “exercise plenary review over the District Court’s grant of summary judgment and apply the same standard that the District Court should have applied.” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quotation omitted). 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.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences from the evidence must be drawn in his favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009).
III.
Defendant Miller (now Defendant Pawlowski) is sued only in his official capacity as Chairman of MPOETC. “Official-capacity suits are an alternative way to plead actions against entities for which an officer is an agent.” Koslow v. Commonwealth of Pa., 302 F.3d 161, 178 (3d Cir.2002). Thus, we will refer to the Chairman of MPOETC simply as “MPOETC.”
The ADA prohibits any “covered entity” from discriminating against individuals on the basis of a disability in making employment decisions. 42 U.S.C. §§ 12112(a).3 “The term ‘covered entity’ means an employer, employment agency, labor organization, or joint labor-management committee.” Id. § 12111(2). MPOETC is not any of these things in this context. It is merely a governmental body that certifies that an applicant has or has not met certain preordained guidelines when a police *326department — an employer — directs it to process an application. 37 Pa.Code § 203.15(c); see also 53 Pa. Cons.Stat. § 2164. Thus, MPOETC did not violate the non-discrimination in employment provisions of the ADA because it is not subject to them.
In addition, and only assuming MPOETC is covered by the nondiscrimination in employment provisions of the ADA, we conclude that Lekich’s claims lack merit. A prima facie case of discrimination requires, inter alia, that an adverse employment action be taken against the complainant. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir.2000). None was taken here by MPOETC because Lekich’s offer of employment was withdrawn. Thus, MPOETC had nothing on which to act. We agree with the District Court that Lekich’s ADA discrimination claim fails “because MPOETC was never in a position to make a certification decision regarding [him].”4
As the District Court recognized, Lekich’s retaliation claim “simply re-frame[s] the allegations underlying his claims of unlawful discrimination.” Assuming Lekich can establish a prima facie case of retaliation in violation of the ADA by MPOETC’s refusal to provide him with a reasonable accommodation after he requested it, MPOETC bears the burden of articulating a legitimate, nondiscriminatory reason for its action. Shaner, 204 F.3d at 500. MPOETC argues that its reason for refusing to waive the vision requirement or accept the second opinion on Le-kich’s vision — what Lekich argues would be reasonable accommodations — was that it can only act on an application packet sent to it by a police department that has extended an offer of employment. 37 Pa. Code § 203.15(c). Without this, it had nothing to act on, whether granting or denying the request for an accommodation. Lekich has failed to demonstrate that this reason is pretext, and his claim thus fails.
This reasoning yields the same result for Lekich’s RA and PHRA claims. 29 U.S.C. § 794(d) (declaring that the same standards apply to an RA claim as an ADA claim); Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 n. 3 (3d Cir.2009) (noting that the same analysis controls an ADA claim as a PHRA claim) (quotation omitted).
IV.
We conclude that Lekich has failed to point to a genuine issue of material fact as to whether MPOETC violated the ADA, RA, or PHRA. Thus, we will affirm the judgment of the District Court.
. MPOETC, incorrectly named by Plaintiff, and thus in the caption, as the Municipal Officers’ Educational Training Commission, is an arm of the Pennsylvania State Police and is responsible for setting the minimum standards required of applicants to be police officers within the Commonwealth of Pennsylvania and certifying that an applicant has met them. 53 Pa. Cons.Stat. § 2164(8), (12). It acts on an application for certification only by direction of a police department that has extended an offer of employment to the applicant. 37 Pa.Code § 203.15(c).
. By operation of Federal Rule of Appellate Procedure 43(c), Colonel Frank Pawlowski has been automatically substituted for Colonel Jeffrey B. Miller because he succeeded him to the position of Chairman of MPOETC.
. Because the acts Lekich complains of took place prior to January 1, 2009, MPOETC argues that the Americans With Disabilities Act Amendments Act of 2008 ("ADAAA") is not applicable. Lekich neither cites the amended law in his initial Brief nor has filed a Reply Brief arguing that the ADAAA does apply, despite its effect on the "disability" and "regarded as” provisions of the ADA. See Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 188 n. 17 (3d Cir.2009). Though we have not decided whether the ADAAA is retroactive, id., our disposition of this case would not be affected by the answer to this question.
. Lekich testified in his deposition that he understood he needed a job offer for MPOETC to certify him. Thus, he would have understood that its refusal to certify him was connected to his lack of an offer of employment.
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OPINION
SMITH, Circuit Judge.
In this appeal, Howard C. Kiburz argues that the District Court improperly granted summary judgment to the United States Department of the Navy (the “Navy”) on his claims brought under the Rehabilitation Act, 29 U.S.C. § 701 et seq., alleging (1) discrimination based on his medical disability and (2) constructive discharge.1 After a careful review of the record, we conclude that the District Court properly granted summary judgment for the Navy on both claims and will affirm the District Court’s judgment.
I.
Kiburz’s Employment
Kiburz was employed by the Navy as a GS-12 Information Technology (“IT”) Specialist in Mechanicsburg, Pennsylvania. An IT Specialist, as explained in Kiburz’s job description, “performs a wide variety of complex [IT] duties,” including:
• “Providing] technical adviee/assis-tance to customers! ], user representatives, subject-matter experts and IT personnel regarding a wide variety of IT matters related to special projects, [and] unique maintenance problems!.]”
*329• Participating in “extensive coordination/consultation with personnel responsible for related systems/applications/operations, significant data gathering and other fact finding efforts[.]”
• Providing “lower level software engineers, [if any,] with guidance and assistance regarding overall project/assignment issues and complicated technical matters such as those not covered by guidance or precedence; assigning], integrat[ing], coordinating] and monitoring] their work; providing] information to the supervisor concerning their performance and potential morale or other problems.”
In practice, according to one of Kiburz’s supervisors,2 Ed Ferguson, Kiburz’s job required “working with others, e.g., Project Officers, Business System Designers, etc., and attending meetings — sometimes numerous meetings and, with some regularity, unplanned meetings — with various persons such as users, team members, other IT staff, and supervisors — to plan and carry out the IT work, resolve problems, allocate resources, and deal with many issues arising in the field of IT.” According to the job description, an IT Specialist’s “[cjompleted work is reviewed from an overall standpoint in terms of technical adequacy, feasibility, compatibility with other work/systems, effectiveness in meeting requirements and achieving desired results, [and] timeliness[.]” An IT Specialist is also reviewed based on her ability to establish “effective working relationships with customers! ], assistants, and other coworkers.” Kiburz’s Medical Condition and Requests for Accommodation
Kiburz has arthritis in his spine, a debilitating medical condition that causes unpredictable, episodic back pain, requiring immobilization and bed rest. Although the record is unclear, it appears that Kiburz was diagnosed with the condition over ten years ago, around December 14, 1998. Since his diagnosis, Kiburz has sought several accommodations for his medical condition from the Navy. Among them, Kiburz requested (1) a flexible work schedule, (2) permission to work from home, and (3) a special chair for working in the office.
Kiburz’s Requests for a Flexible Work Schedule
In September 1999, Kiburz sought a flexible work schedule under the Navy’s Flexi-Schedule Program. He requested a schedule that would permit him to arrive between 6:30 a.m. and noon, and depart between 3:30 p.m. and 8:30 p.m., during the work-week. He also requested the option of working on weekends. The Navy approved his request for a flexible work schedule for one year, but limited his arrival and departure times to between 6:30 a.m. and 11:00 a.m. and between 3:30 p.m. and 7:30 p.m., respectively. The Navy rejected his request to work on weekends.
In September 2000, at the expiration of the one year term, Kiburz sought renewal of his flexible work schedule. His request was denied by his then-supervisor, Donald Humphrey. After discussing the issue with Starr Lehman, an employee at the Workforce Diversity Office, Humphrey decided to wait until Kiburz’s tasking for a *330project had been identified before seriously considering whether to grant Kiburz a flexible work schedule. Humphrey suggested to Kiburz that he resubmit his request after the project’s workload was known. Kiburz, however, never resubmitted his request to Humphrey.
In March 2001, Kiburz submitted another flexible work schedule request to his then-supervisor, Ferguson. After discussing Kiburz’s request with Lehman, Ferguson proposed a 60-day trial flexible work schedule. Ferguson’s proposal permitted Kiburz to keep hours similar to those he kept under his September 1999 flexible work schedule. Kiburz rejected the proposal because it would “only reduce [his] use of [Leave Without Pay (LWOP) ] by a few hours each pay period.”
Kiburz’s Requests to Work from Home
In July 2000, Kiburz began requesting to work from home. Dr. Bruce MacKellar, Kiburz’s doctor, believed that working from home might mitigate some of Ki-burz’s back pain and increase his productivity. Dr. MacKellar told the Navy that Kiburz’s condition was likely to worsen and that Kiburz would need almost complete immobility for pain control should he experience an episode of back pain. The frequency and length of these episodes of pain were, according to Dr. MacKellar, unpredictable. Based on this information, the Navy denied Kiburz’s request to work from home, reasoning that Kiburz would be unable to work from home even if his request was granted. On January 31, 2001, Kiburz submitted a second request to work from home. That request was denied for the same reason.
Kiburz’s Search for a Special Chair
Kiburz also requested a special chair, one that would mitigate his back pain, for use at the office. On September 19, 2000, that request was approved and the Navy arranged for Wendy Beecher, a Health and Occupation Specialist employed by the Navy, to work with Kiburz to find an appropriate chair. Beecher told Kiburz that she needed his doctor to recommend an appropriate chair that would address his medical condition. Five months later, in February 2001, Kiburz submitted his doctor’s recommendation. That recommendation stated that Kiburz should be given a “high-backed, tilting executive type chair with significant padding in both back and seat areas with arm rests on each side[.]” Beecher permitted Kiburz to search for a chair that met those requirements, but Kiburz was unable to find anything to his liking. Beecher also took Kiburz’s own description of a suitable chair, which elaborated on his doctor’s description, to multiple vendors and had those vendors bring in chairs for Kiburz to try. According to Beecher’s declaration, she visited or contacted five vendors and brought in at least five chairs for Kiburz. Kiburz rejected all the chairs.
On March 14, 2002, Beecher had an occupational therapist from an outside medical clinic perform an ergonomic evaluation on Kiburz. After meeting with Ki-burz, the occupational therapist told Ferguson that Kiburz wanted a chair that could significantly recline, but that such a chair would actually exacerbate Kiburz’s medical condition. As a result, the occupational therapist was unable to find a chair for Kiburz.
Kiburz’s Removal and Appeal to the Merit Systems Protection Board
On October 31, 2001, Ferguson informed Kiburz that his frequent absences were burdening the Navy’s other employees and harming the organization. Ferguson also stated that additional frequent absences *331may jeopardize Kiburz’s position.3 In February 2002, while the chair search was ongoing, Ferguson recommended to the Navy that Kiburz be terminated. On May 3, 2002, the Navy removed Kiburz due to his unpredictable, unscheduled absences, and his inability to perform his work.4
Kiburz appealed his removal to the Merit Systems Protection Board (the “Board”), claiming that his absences were approved and that his removal was discriminatory under the Rehabilitation Act. On September 20, 2002, the Board issued its initial decision stating that Kiburz’s removal was proeedurally improper because he had not been given a “reasonable” amount of time to modify his behavior after he was warned by Ferguson of his possible removal. The Board ordered that Kiburz be reinstated, but rejected Kiburz’s claim that his removal violated the Rehabilitation Act. In doing so, it determined that Kiburz was not a “qualified disabled person” under the statute because he could not perform the essential functions of his job with or without a reasonable accommodation. On September 5, 2004, the Board affirmed its initial decision.
Kiburz’s Return to the Navy
In November 2002, shortly after the Board issued its initial decision, Kiburz returned to work. On his return, Kiburz requested a new chair because the chair he had been using prior to his removal was breaking. His newly assigned supervisor, Larry Greenawalt, attempted to accommodate Kiburz’s request for a new chair by providing him with a Big and Tall catalog of chairs and offering to drive Kiburz to local stores to find a chair on government time. Eventually, Kiburz picked a chair from the Big and Tall catalog and it was acquired for his use in the office.
*332
Kiburz’s Voluntary Retirement and his Second Board Appeal
In 2003, the Navy instituted a Voluntary Separation Incentive Payment program. The program permitted qualified Navy employees to voluntarily retire in exchange for $25,000. Kiburz was eligible for the program and retired on July 1, 2003. Four days later, on July 5, Kiburz filed a second Board appeal alleging that his voluntary retirement was a constructive discharge in violation of the Rehabilitation Act. Because the Board had not yet issued a final decision in Kiburz’s first Board appeal, it dismissed Kiburz’s second appeal without prejudice and granted him permission to re-file his appeal within fifteen days of the Board’s final decision on his first appeal. Kiburz never re-filed his second appeal after the Board’s final decision on the first appeal was issued on September 5, 2004. Instead, Kiburz sought relief in the federal courts.
Procedural History
On October 13, 2004, Kiburz filed a complaint against the Navy in the United States District Court for the Middle District of Pennsylvania. He charged the Navy, under the Rehabilitation Act, with (1) discrimination and (2) constructive discharge for failing to accommodate his medical disability. After discovery, the Navy successfully moved for summary judgment on both counts.5 Kiburz now brings this timely appeal.
II.
Kiburz argues that the following constitute genuine issues of material fact: (1) whether the Navy accommodated Kiburz’s request for a special chair; (2) whether Kiburz’s request to work from home was reasonable; and (3) whether Kiburz’s requests for a flexible work schedule in September 2000 and March 2001 were reasonable. These issues, he argues, preclude the entry of summary judgment for the Navy on his discrimination claim.6 None of the purported genuine issues of material fact identified by Kiburz withstand scrutiny-
A.
Kiburz claims that there is a genuine issue of material fact as to whether the Navy accommodated his request for a special chair that would mitigate his back pain. The undisputed facts establish that the Navy repeatedly attempted to find Ki-burz an appropriate chair. First, Beecher asked Kiburz to pick out a chair that met Dr. MacKellar’s specifications. Second, she sent Kiburz’s own detailed description of a suitable chair to multiple vendors and brought in at least five chairs for Kiburz’s *333review. Third, she had an outside occupational therapist conduct an ergonomic evaluation of Kiburz to assist in finding an appropriate chair. Fourth, Greenawalt assisted Kiburz in procuring a new chair immediately after he was reinstated by the Board in November 2002. After all those attempts, Kiburz finally chose a chair from a catalog that Greenawalt had given him. Kiburz’s claim that he was not accommodated, despite the Navy conducting a search involving input from Kiburz, Dr. MaeKellar, Beecher, an outside occupational therapist, and Greenawalt, is not supported by the record. Kiburz’s position is meritless and we agree with the District Court that he “has failed to identify any evidence ... that suggests that the attempts by the Navy to accommodate him, albeit unsuccessful, were not reasonable.”
B.
Kiburz also argues that there are genuine issues of material fact as to whether his work from home request was reasonable. We disagree. The District Court correctly determined that Kiburz cannot complete essential functions of an IT Specialist, such as providing support, working with colleagues, and attending meetings and trainings, from home. Thus, his requested accommodation was unreasonable. Donahue v. Consol. Rail Corp., 224 F.3d 226, 232 (3d Cir.2000) (“[E]m-ployers are not required to modify the essential functions of a job in order to accommodate an employee.”).
To determine the essential functions of a job we look to numerous factors, including, but not limited to: (1) “[t]he employer’s judgment as to which functions are essential”; (2) “[t]he amount of time spent on the job performing the function”; and (3) “[t]he consequences of not requiring the [employee] to perform the function.” 29 C.F.R. § 1630.2(n)(3).7
The Navy’s view of what constitutes an IT Specialist’s essential functions can be gleaned from Kiburz’s job description and his supervisors’ directives. See 29 C.F.R. § 1630.2(n)(3)(i). These documents and communications show that working with others, attending work, meetings and trainings, and providing technical guidance, were all essential functions of Ki-burz’s position:
• Kiburz’s job description made clear that his effectiveness would be judged in part by his “achievement of effective working relationships with customers[], assistants, and other coworkers.”
• Ferguson stated in his October 31, 2001 letter that he “need[ed] [Kiburz] to come to work. At the absolute minimum, [Ferguson] need[ed] [Ki-burz] to be able to confidently predict almost all of [his] absences sufficiently in advance to allow for the scheduling of time-sensitive work projects, meetings, and training classes.”
• In the Supervisor’s Statement portion of Kiburz’s Request for Special Benefits for Health Reasons, Humphrey identified numerous “critical” tasks that Kiburz could not complete outside of the office. According to Humphrey, Kiburz’s absence from the office “adversely impacted] all PD Elements and critical tasks including: responding to PTRs, participating in system *334requirement meetings, forecasting work completion, [and] providing technical guidance for emergent system requirements.”
• Ferguson’s declaration stated that Ki-burz’s job required “[w]orking with others, e.g., Project Officers, Business System Designers, etc., and attending meetings — sometimes numerous meetings and, with some regularity, unplanned meetings — with various persons such as users, team members, other IT staff, and supervisors — to plan and carry out the IT work, resolve problems, allocate resources, and deal with many issues arising in the field of IT.”
While perhaps some of these tasks could be completed from home, others, as the District Court correctly surmised, such as “training, scheduling [and attending meetings], and [providing] guidance [to other staff and managers]” could not.
The amount of time needed to perform the tasks that could only be completed in the office is fairly substantial. See 29 C.F.R. § 1630.2(n)(3)(iii). Kiburz attempted to downplay the amount of time spent performing these tasks in an affidavit where he stated that, at most, he spent approximately twenty percent of his time providing guidance to other staff and managers. But after adding in training, attending meetings, and responding to emergency situations, we conclude that these tasks collectively account for a substantial portion of Kiburz’s total duties. Moreover, some of these tasks, like attending meetings and trainings, are prerequisites for being able to complete work that could be done individually at home. Thus, the nature and amount of work that can be conducted from home is based on the completion of certain tasks in the office.
The negative consequences of not having Kiburz perform the tasks that could only be completed in the office, see 29 C.F.R. § 1630.2(n)(3)(iv), are also clearly established by the record. Looking at the effects Kiburz’s absences have had in the past, it is evident that Kiburz’s presence in the office is important to the success of his assigned projects. Indeed, according to Ferguson, Kiburz’s “frequent unscheduled absences ... resulted in an increasingly onerous burden for the organization and [Kiburz’s] colleagues.”8 Moreover, as explained in a memo pertaining to Kiburz’s removal, Kiburz’s inability to work in the office greatly impeded his work and harmed the Navy:
On numerous occasions between 10 February and 19 October 2001, [Kiburz’s] functional counterpart in Code 931 inquired as to his work status. Workload planning/progress was impeded because of his absences. Additionally, he could not be scheduled for work assignments, such as the lead for the RSupply Project, because of his inability to keep a regular work schedule. Numerous scheduled and unscheduled RSupply meetings were required. Also this project required numerous scheduled conference calls with our remote customers to effectively plan and deliver the project. Frequent cancellation of conference calls would impact the project schedule, product quality and [our organization’s] professional reputation. This reassignment of work precluded [the organization] from completing other funded projects for our customers.
In addition, the memo explained that Ki-burz’s absences decreased his relevant IT *335skillset because he missed hundreds of hours of training:
[Kiburz’s colleagues] averaged 90 hours of training each year in FY01, FY00, FY99 and FY98. During the same time-frame ... Kiburz completed one sixteen hour and two four hour technical courses. His inability to attend 30 to 40 hour training sessions limits his ability to maintain the necessary skills required in today’s environment and creates excessive training costs (empty class seats) for the Command. As a result, [Ki-burz’s] assignments are limited to legacy (dated technology) systems that are being phased out by the Navy.
In sum, the negative consequences of Ki-burz’s prior absences from the office show that working from home would limit Kiburz’s utility as an employee because he would be unavailable for projects requiring a regular work schedule, unscheduled meetings, or conference calls. His inability to attend trainings would limit his relevant IT skillset, rendering him increasingly useless to his employer as legacy systems are phased out.
All of these facts establish that Kiburz’s presence in the office was necessary to perform essential functions of his job. Thus, we agree with the District Court’s determination that “Kiburz could not perform all of the essential functions of his job without his regular, physical presence in the workplace.”9
In addition, we agree with the District Court’s further determination that “even if the accommodation had been reasonable, the record [shows] that Kiburz could not demonstrate that he was ‘otherwise qualified to perform the essential functions of the job.’ ” Dr. MacKellar and Kiburz both stated that Kiburz suffered from unpredictable episodes of severe pain that would require him to remain immobile for periods of time.10 Kiburz cannot work during those episodes of pain even with his proposed accommodation of working from home. Kiburz, himself, admitted in his Statement of Disability in Connection with Request for Special Benefits for Health Reasons that even if he was permitted to work from home, he “most likely wouldn’t be able to perform all [of his] work because of the pain from the arthritis.” Based on these facts, we conclude that Kiburz could not carry out the essential functions of an IT Specialist with or without the accommodation of being able to work from home. See Shiring, 90 F.3d at 831.
C.
Kiburz’s argument that the September 2000 and March 2001 flexible work *336schedule requests raise genuine issues of material fact also fails. According to Ki-burz, the denial of the September 2000 flexible work schedule request was suspect because Humphrey denied the request citing lack of knowledge regarding the workload for a project without explaining why the workload may change. We disagree with Kiburz’s assertion that Humphrey’s failure to explain why the workload may change creates a genuine issue of material fact. At best, Kiburz’s purported genuine issue of material fact amounts to mere speculation that there was no potential for a changed workload and that Humphrey was denying Kiburz’s request for other, discriminatory reasons. “[Speculation and conjecture!, however,] may not defeat a motion for summary judgment.” Acumed LLC v. Advanced Surgical Servs., 561 F.3d 199, 228 (3d Cir.2009) (citing Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 332-33 (3d Cir.2005)); Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.1990).
Additionally, while Humphrey did not explain why the workload may change, he also did not summarily reject Kiburz’s request without explanation. Humphrey noted, in an October 4, 2000 e-mail, that Kiburz’s flexible work schedule request could not be granted because “[t]he FY01 workload for application ‘O’ ha[d] not been identified[.]” More importantly, that rejection was not the end of the matter. Humphrey suggested in the same e-mail that Kiburz “resubmit [his] request for further consideration” when “the FY01 application ‘O’ workload [wa]s identified.” Kiburz neither resubmitted his request nor questioned Humphrey’s reasoning in denying his request.
The March 2001 request also fails to raise a genuine issue of material fact. In that request, Kiburz proposed a schedule that would permit him to arrive at and depart from the office anytime between 6:30 a.m. and 10:30 p.m. Ferguson responded to this request with a proposed flexible work schedule similar to Kiburz’s September 1999 schedule, permitting arrival and departure windows of 6:30 a.m. to 11:00 a.m. and 3:00 p.m. to 7:30 p.m., respectively. Kiburz rejected Ferguson’s proposal, claiming that it would “only reduce [his] use of LWOP by a few hours each pay period.” Assuming Kiburz was correct, the fact that his LWOP would only decrease by a few hours each pay period did not render the accommodation unreasonable and worthy of his rejection. Ferguson’s proposal permitted Kiburz flexibility to manage his medical condition while maintaining his work performance.
Kiburz’s proposed schedule, on the other hand, would have only condoned his unpredictable absences and thus, was unreasonable for all the same reasons as his proposal to work from home. Kiburz’s attendance during normal work hours is important to the completion of essential functions of his job. His proposed schedule would permit him to come and go anytime during the day, over a 16-hour period. In short, Kiburz’s proposed schedule would require “modifying] the essential functions of [an IT Specialist] in order to accommodate [Kiburz],” Donahue, 224 F.3d at 232, and the Navy is under no legal obligation to do so. Id.
III.
Kiburz argues that his constructive discharge claim11 was based on the *337Navy’s continuing failure to accommodate his disability after the Board reinstated his employment. The facts do not support Kiburz’s argument.12 First, Kiburz voluntarily retired from the Navy. Indeed, he received $25,000 in exchange for his early retirement. Second, Kiburz did not produce any evidence showing that his work environment was intolerable. His assertions of a convoluted accommodation request process, even if true, are a far cry from cases where we have concluded that an employee was constructively discharged. E.g., Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084-85 (3d Cir.1996) (reversing summary judgment for employer where employee was subjected to racially-based insults and prevented from doing her job). At the time of his purported constructive discharge, Kiburz was not “threatened with discharge; nor did [the Navy] ever urge or suggest that [h]e resign or retire.” See Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.1993) (reversing judgment for plaintiff on constructive discharge claim under the Age Discrimination in Employment Act). Kiburz was also never demoted, transferred to a less desirable position, or subjected to reduced pay or benefits. Id. Third, Greenawalt accommodated Ki-burz’s only request after he was reinstated to his position by the Board — the request for a special chair.
Given these facts, we agree with the District Court that “there is no evidence of intolerable conditions sufficient to constitute a constructive discharge.” Although we sympathize with Kiburz’s chronic and painful medical condition, even an intolerably painful medical condition does not give rise to a claim for constructive discharge. The conditions of the work environment itself must be intolerable and Ki-burz has produced no evidence to meet such a requirement. Accordingly, we reject Kiburz’s contention that he was constructively discharged.
IV.
Kiburz has failed to show that there were any genuine issues of material fact precluding the District Court’s grant of summary judgment for the Navy. Accordingly, we will affirm the District Court’s order.
. The District Court exercised jurisdiction over this case under 28 U.S.C. § 1331, and we review its grant of summary judgment under 28 U.S.C. § 1291. We exercise "plenary review over the District Court’s grant of summary judgment.” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (internal quotation omitted). A court should grant summary judgment “if the pleadings, the discovery and disclosure male-rials 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). In applying that standard, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.” Shuman, 422 F.3d at 146 (internal quotation omitted).
. Kiburz had three supervisors over the course of the events leading to this appeal: Ed Ferguson, Donald Humphrey, and Larry Greenawalt. Ferguson was Kiburz’s supervisor until April 2000. At that time, Humphrey was named Kiburz’s supervisor. In February 2001, Kiburz was assigned back to Ferguson. He stayed with Ferguson until November 2002, when he was assigned to Greenawalt.
. Ferguson’s October 31, 2001 letter to Ki-burz stated:
I am concerned about [your largely unscheduled absences from work, totaling approximately 700 hours over 8 months]. While fully sympathetic to your condition and what I perceive as your inability to either work a full work schedule or confidently predict in advance when your condition would preclude your coming to work on a particular day, I am responsible for carrying out the mission of the Branch. You are an important member of the organization and the work assigned to you is a key component of the overall work output. When you are unable to work, I must often assign your work to other subordinates to assure timely completion. In addition, I am unable to schedule your attendance at important meetings and training classes, since I am unable to confidently predict that you will be available when required. On numerous occasions ... your functional counterpart [in another department] inquired as to your work status. Workload planning/progress was impeded ... because of your absences.....In short, your frequent unscheduled absences have resulted in an increasingly onerous burden for the organization and your colleagues.
I must therefore inform you that, upon the exhaustion of your FMLA entitlement ..., I will no longer be able to approve LWOP requests. I need you to come to work. At the absolute minimum, I need you to be able to confidently predict almost all of your absences sufficiently in advance to allow for the scheduling of time-sensitive work projects, meetings, and training classes. (An occasional unplanned absence is acceptable, as it would be for any employee.) If this is not possible for you, I may be forced to take further action, possibly including removal from your position.
. Kiburz took substantial amounts of leave from work due to his medical condition. Although the record does not have data for Kiburz’s entire employment since his medical condition affected his work habits, we know that Kiburz had extended streaks of absences. For example, from June 21, 1999, to July 1, 2000, Kiburz used 727.5 hours of leave, approximately 4.5 months. From February 13, 2001, to October 19, 2001, Kiburz used another 718.5 hours of leave, approximately 4.4 months.
. Prior to the end of discovery, the Navy moved for partial summary judgment on Ki-burz's constructive discharge claim for failure to exhaust his administrative remedies. The Navy argued that Kiburz failed to exhaust the Board appeal process because Kiburz never pursued his constructive discharge claim with the Board. The District Court denied that motion.
. "[T]o make out a prima facie case of discrimination under the Rehabilitation Act, the employee bears the burden of demonstrating (1) that ... she has a disability!;] (2) that ... she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that ... she was nonetheless terminated or otherwise prevented from performing the job.” Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir.1996). "The [employee] must [also] make a prima facie showing that reasonable accommodation is possible.” Id. "If the [employee] is able to meet these burdens, the [employer] then bears the burden of proving, as an affirmative defense, that the accommodations requested by the [employee] are unreasonable, or would cause an undue hardship on the employer.” Id.
. In the employment context, the standards from the Americans with Disabilities Act of 1990 (the "ADA”), 42 U.S.C. § 12101 et seq., should be used in determining whether the Rehabilitation Act has been violated. 29 U.S.C. § 794(d). Thus, we may look to the regulations implementing the equal employment provision of the ADA to provide general guidance on what is an "essential function” of a job.
. In the October 31, 2001 letter from Ferguson to Kiburz, Ferguson explained that he often had to assign Kiburz's work "to other subordinates to assure timely completion” due to Kiburz’s unpredictable absences from the office.
. Kiburz’s observation that other Navy employees were permitted to work from home is not relevant to his discrimination claim. There is no evidence showing that those employees performed the same essential functions as Kiburz or had comparable medical conditions. The mere fact that others were permitted to work from home, standing alone, does not permit Kiburz to survive summary judgment.
. In an August 11, 2000 letter to the Navy, Dr. MacKellar stated that:
Due to [Kiburz’sj persistent and continued severe episodes of pain, it is my recommendation that work schedules be extremely flexible for ... Kiburz. In a completely flexible work environment, he may be able to function. However, he will have periods of time where he is unable to work [.]
(emphasis added). Kiburz described his medical condition similarly in his Statement of Disability in Connection with Request for Special Benefits for Health Reasons:
I have arthritis of the spine which gives me great pain when I stand, walk or sit. Some days any movement of the spine causes me enough pain that I am unable to come into work and I spend most of the day in bed or in a recliner chair moving as little as possible.
(emphasis added).
. The test applied to constructive discharge claims is objective, and turns on "whether a reasonable jury could conclude that [the Navy] permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign.” Connors v. Chrysler *337Fin. Corp., 160 F.3d 971, 974 (3d Cir.1998) (citing Spangle v. Valley Forge Sewer Auth., 839 F.2d 171, 173 (3d Cir.1988)). In other words, the conditions must have been objectively “intolerable.” Spangle, 839 F.2d at 173. “Intolerability” is a fairly high standard. It requires a showing that a reasonable person in the employee's position would feel like she had “no choice but to resign”:
"Intolerability” is not established by showing merely that a reasonable person, confronted with the same choices as the employee, would have viewed resignation as the wisest or best decision, or even that the employee subjectively felt compelled to resign; presumably every resignation occurs because the employee believes that it is in his best interest to resign. Rather, “intoler-ability ... is assessed by the objective standard of whether a ‘reasonable person' in the employee’s position would have felt compelled to resign,” — that is, whether he would have had no choice but to resign.
Connors, 160 F.3d at 976 (quoting Blistein v. St. John's Coll., 74 F.3d 1459, 1468 (4th Cir.1996) (citations omitted)).
. Kiburz also argues, based on Ferguson’s emails to Navy officials, that Ferguson did not like Kiburz and did not want Kiburz to return to work under his supervision. What Ferguson thought of Kiburz is irrelevant to Kiburz’s constructive discharge claim, which turns on whether the latter’s work conditions were objectively intolerable. See Connors, 160 F.3d at 976.
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OPINION
PER CURIAM.
Bin Chen, a citizen of China, entered the United States in 2004 without valid travel documents. He filed a timely application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He now petitions for review of the Board of Immigration Appeals order upholding the denial of relief.
I
At his first immigration hearing in February 2005, Chen testified that he began practicing Falun Gong in 2001, on the advice of his grandmother. Chen asserted that in May 2002, police officers barged into his home, where he had been practicing Falun Gong with his grandmother and one or two friends.1 Although Chen and his friends were able to escape the police, his grandmother was arrested and detained for ten days. Chen claimed that he went into hiding following the arrest of his grandmother and subsequently fled China. Chen’s father and grandmother remain in China.
Although Chen was able to identify some of the basic principles of Falun Gong and name the meditation exercises that Falun Gong adherents practice, his ability to elaborate on other aspects of Falun Gong was limited. Chen explained that this resulted from his illiteracy. Chen also submitted a letter from his father, which contained an account of the events leading Chen to practice Falun Gong and of the circumstances surrounding the police raid, the grandmother’s arrest, and Chen’s subsequent flight to the United States. Notably, Chen’s father admitted in the letter *350that he was not present when police raided the home and arrested Chen’s grandmother.
The IJ denied Chen’s applications for relief, noting that Chen’s testimony did not demonstrate anything beyond a general understanding of Falun Gong, and that Chen provided insufficient evidence to corroborate the claims that he practices Falun Gong and that he and his family faced persecution in China. Chen appealed, and the BIA remanded the matter so that Chen could have the opportunity to either present corroborative evidence or explain his failure to do so.
The IJ conducted another hearing in May 2007. Chen testified that since his arrival in the United States, he often practiced Falun Gong in a park with a group of about 20 people. He also submitted some photographs of himself practicing Falun Gong exercises in the United States in front of other people, who were presumably other practitioners, and general literature about Falun Gong. However, the photographs did not identify any of the other people depicted as practitioners of Falun Gong. And, as the IJ noted, Chen failed to offer any testimony from others corroborating his practice of Falun Gong, despite the fact that he claimed to practice regularly with other people. Nor did Chen present any new evidence at the second hearing to corroborate the claim that his grandmother had been arrested. The IJ again denied relief, reasoning that Chen failed to provide sufficient evidence to corroborate his claims that he practiced Falun Gong or that his grandmother was arrested. Chen appealed, and the BIA affirmed, agreeing with the IJ’s corroboration analysis.
II
We have jurisdiction over Chen’s petition pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we review the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence, and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). Chen argues that the Agency erred in concluding that he failed to adequately corroborate his claim, and contends that he is entitled to asylum, withholding of removal, and CAT relief. We disagree.
Even when an applicant is considered otherwise credible, a failure to corroborate may be relied on to deny relief when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)). “It is reasonable to expect corroboration where the facts are central to the applicant’s claim and easily subject to verification.” Id. at 192.
Here, the IJ initially faulted Chen for failing to demonstrate that he practiced Falun Gong and for failing to present sufficient evidence of his grandmother’s arrest.2 The BIA remanded the case and *351afforded him the opportunity to present additional evidence to support his claims. Despite having nearly a year between the Board’s decision and his second hearing before the IJ, Chen produced only minimal evidence to corroborate his claims. Specifically, Chen failed to produce any evidence — beyond his father’s letter — that his grandmother was ever arrested. And although Chen submitted some photographs showing him publicly practicing what appeared to be Falun Gong exercises, Chen offered no testimony from his purported fellow practitioners to demonstrate that he actually continued to practice. Nor did he present evidence corroborating his claim that he practiced Falun Gong while in China. It was reasonable for the Agency to require Chen to adequately corroborate his claims, and we agree that Chen’s failure to do so was unreasonable.
Because Chen’s failure to corroborate rendered him ineligible for asylum, we also agree that he was unable to meet the higher standards applicable to applications for withholding of removal and CAT protection.3 See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir.2008) (withholding of removal); Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005) (CAT relief).
Accordingly, we will deny the petition for review.
. At the removal hearing, Chen explained that although his asylum application indicated that there was only one friend present at the time, there were actually two friends there.
. We note that the IJ's February 2005 opinion omitted any discussion of the letter submitted by Chen's father, and simply concluded that Chen “made reference to his grandmother's arrest and her release ten days later, but failed to document that infonnation in order *351to make it credible." A.R. 113. However, the IJ expressly considered the letter on remand, noting that its corroborative value was weak because Chen's father did not witness the police raid. See A.R. 41.
. The Government argues that because Chen provided no substantive argument to the BIA regarding his CAT claim, we lack jurisdiction over his challenge to the BIA's denial of CAT relief. We disagree. A petitioner is deemed to have exhausted all administrative remedies if he raises all issues before the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir.2008). “Indeed, 'so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.’ " Id. (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006)). Here, Chen challenged the IJ’s CAT determination in both his notice of appeal and brief to the BIA, albeit with no additional argument. We therefore conclude that he satisfied the Immigration and Nationality Act's exhaustion requirement. Even if Chen's filings were insufficient to do so, the claim is exhausted because the BIA expressly considered the merits of his request for CAT relief. See id. at 123-24.
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*357OPINION OF THE COURT
CHAGARES, Circuit Judge.
Plaintiff Erik E. Kolar appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing his claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO” or “Act”), Pub.L. No. 91-452, Title IX, 84 Stat. 941 (1970), as amended, 18 U.S.C. §§ 1961-1968, and declining to exercise supplemental jurisdiction over his remaining state-law claims. We will affirm.
I.
We write for the parties’ benefit and set forth only those facts crucial to our analysis. In this procedural posture, we assume as true all well-pleaded facts appearing in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009).
Kolar, a Pennsylvania citizen, is in the business of real estate investment. In 1998, he joined defendant Preferred Real Estate Investments, Inc. (“PREI”) as a shareholder and the company’s president.1 Defendant Michael G. O’Neil founded PREI in the early 1990’s, and at all times relevant here was the corporation’s chairman. PREI’s business involves the acquisition of real property by single-purpose limited partnerships (the “Affiliates”) that are owned by PREI’s principals. The Affiliates are governed by separate (albeit substantially identical) partnership agreements, and they generally derive them working capital from PREI’s principals, on a pro rata basis, in accordance with each principal’s ownership interest.2 PREI generates revenue through the development and management of the Affiliates’ purchased properties.
Kolar alleges that he owns shares in the following six Affiliates named as defendants in this action (the “Defendant Affiliates”); Island View Crossing, L.P. (“Island View”); Lee Park Investors, L.P. (“LPI”); Hamilton-NJ Holdings, L.P. (“Hamilton”); 240 Princeton Avenue Associates, L.P. (“Princeton”); Hunting Fox Associates V, L.P. (“Hunting Fox”); and Rivertown Holdings, L.P. (“Rivertown”). Kolar also owns a limited partnership interest in PRED and a shareholder interest in Preferred Real Estate Developers, Inc., a 1% general partner of PRED. Finally, Kolar owns minority shareholder interests in the various general partners of the Defendant Affiliates.
In 2005, Kolar resigned his position as an officer, director, and employee of PREI and entered into a Separation and Stock Repurchase Agreement and Mutual General Release (“Separation Agreement”) with the company. Under the agreement — which O’Neil executed on PREI’s behalf — Kolar retained his equity interests in the various PREI entities (including the Defendant Affiliates), and continued to be entitled to all rights and benefits thereunder. These entitlements included all rights to profit distributions, return of capital contributions, and future equity interests concerning properties that were subject (or in the process of being made subject) to agreements at the time the Separation Agreement was executed.
In September 2007, Kolar filed a 15-count complaint in the District Court *358against O’Neil, PREI, PRED, and the Defendant Affiliates. He asserted several state-law causes of action against various defendants, and three RICO claims against all defendants. Essentially, the complaint alleges that PREI, PRED, and the Defendant Affiliates — under the control and express direction of O’Neil, and in violation of the Separation Agreement and governing partnership agreements — diverted partnership distributions to which Kolar was entitled into other Affiliates in which he had no or smaller interests. Kolar avers that the defendants fraudulently diverted these funds under pretextual claims that he was obligated to fund “capital calls” in connection with his interests in other Affiliates, and that they charged excessive management fees for several of the Affiliates’ real-estate ventures. Although he identified several suspect transactions in his complaint, one is of central concern here and warrants further explication.
In 2006, Island View — in which Kolar owned an approximate 30% share through his interest in PRED — entered into an agreement to lease office space to the Le-nox Corporation (“Lenox”). Kolar alleges that at the same time the lease agreement (the “Lenox Lease”) was executed, defendants — at O’Neil’s direction — created an entity for the purpose of acquiring another property owned by Lenox; Kolar was not given an ownership interest in this entity. The property, located at 900 Wheeler Way, Langhorne, Pennsylvania (the “Wheeler Way Property”), had an asking price of $10 million. Kolar alleges, however, that Lenox ultimately sold the Wheeler Way Property to the unknown entity for $5.5 million, and in return received from Island View an above-market $4.5 million lease allowance under the Lenox Lease. Consequently, Kolar complains, Island View— the entity in which he had a substantial interest — indirectly funded the discounted purchase of the Wheeler Way Property by an entity in which he had no interest.
Additionally, he asserts that the defendants caused the unknown entity to sell the Wheeler Way Property quickly for $8 million (a $2.5 million profit) and, despite his demand, did not reimburse Island View for the allowance it granted under the Lenox Lease. Kolar asserts that the structure of this transaction deprived him of at least $1.35 million (30% of $4.5 million), not including lost profits on the sale of the Wheeler Way Property.
The remainder of the complaint’s factual allegations regard other transactions undertaken by the Defendant Affiliates and for which Kolar claims he was not properly compensated. For instance, in 2006, LPI sold its primary asset — a property known as Lee Park — to a third party. Kolar alleges that instead of distributing approximately $1.6 million to which he was entitled, the defendants asserted the right to withhold the funds and loan them to other Affiliates. The defendants also allegedly withheld funds from this transaction on the basis that Kolar owed capital-call obligations to other Affiliates. Finally, the complaint alleges that the defendants caused LPI to repay only a fraction of a loan previously made by PRED, further withholding from Kolar distributions owed to him through his interest in that entity.3
These transactions form the basis of Kolar’s state-law claims, and also underpin his three RICO claims, which he asserts under 18 U.S.C. §§ 1962(a), (c) and (d). Briefly, he claims that together, the *359defendants constituted an association-in-fact enterprise engaged in the real estate business, and whose activities included “acquiring and managing properties, disposing of such properties (usually at a profit,) and diverting proceeds resulting from such dispositions otherwise distributable to [Kolar] to his detriment.... ” Compl. ¶ 108. The complaint alleges that defendants repeatedly used the mails and wires to further a fraudulent scheme to divert and misappropriate funds rightly owed to him by virtue of his various partnership interests.
The defendants moved in the District Court to dismiss Kolar’s complaint under Fed.R.Civ.P. 12(b)(6). The District Court granted the motion, holding that Kolar’s RICO claims were legally deficient. Specifically, it found that: (1) the complaint failed to plead an “investment injury” necessary to support a claim under 18 U.S.C. § 1962(a); (2) the alleged enterprise was not “distinct” from the defendant members of the enterprise, undermining Kolar’s claim under 18 U.S.C. § 1962(c); (3) the complaint did not plead a scheme to defraud necessary to maintain a RICO claim under 18 U.S.C. §§ 1962(a) and (c) on a mail and wire fraud theory; and (4) because Kolar’s substantive RICO claims failed, so too did his conspiracy claim asserted under 18 U.S.C. § 1962(d). Joint Appendix (“JA”) 8-14. The District Court then declined to exercise supplemental ju-risdietion over Kolar’s state-law claims, and marked the case closed.4 JA 13. It did not address Kolar’s request to file an amended complaint. JA 16. This timely appeal followed.
II.
RICO provides a private right of action to recover treble damages, attorney’s fees, and costs of suit “for any person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c). “A common thread running throughout § 1962 is that an injured party must demonstrate that the defendant was engaged in a ‘pattern of racketeering activity.’ ” Tabas v. Tabas, 47 F.3d 1280, 1289 (3d Cir.1995) (en banc). RICO defines “racketeering activity” by enumerating a litany of predicate acts; relevant here, “racketeering activity” includes any act indictable under 18 U.S.C. §§ 1341 and 1343, the federal mail and wire fraud statutes. 18 U.S.C. § 1961(1)(B). A “pattern of racketeering activity,” in turn, “requires at least two acts of racketeering activity.” 18 U.S.C. § 1961(5); see also Tabas, 47 F.3d at 1290.
With this background, we turn to the District Court’s disposition of Kolar’s RICO claims.5
A.
Kolar challenges the District Court’s dismissal of his claim under *360§ 1962(a) for failure adequately to allege an investment injury. Section 1962(a) makes it “unlawful for any person who has received any income derived ... from a pattern of racketeering activity ... to use or invest ... any part of such income, or the proceeds of such income” in any enterprise engaged in interstate commerce. 18 U.S.C. § 1962(a). The “provision was primarily directed at halting the investment of racketeering proceeds into legitimate businesses.... ” Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d Cir.1991). Because the objectives of § 1962(a) are “directed specifically at the use or investment of racketeering income,” it “requires that a plaintiffs injury be caused by the use or investment of income in [an] enterprise.” Id. (quoting Rose v. Bartle, 871 F.2d 331, 358 (3d Cir.1989)); see also Lightning Lube v. Witco Corp., 4 F.3d 1153, 1188 (3d Cir.1993) (“[T]he plaintiff must allege an injury resulting from the investment of racketeering income distinct from an injury caused by the predicate acts themselves.”); Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1411 (3d Cir.1991) (rejecting § 1962(a) as a “basis for liability” because “[t]he [pleaded] injury stems from the allegedly fraudulent activities of [defendants], but is not specifically linked to the use or investment of income in any named enterprise.”).6
Kolar focuses his § 1962(a) claim on the Wheeler Way transaction, described above. He argues that defendants invested the proceeds of their racketeering activity by causing Island View to grant Lenox an unauthorized $4.5 million allowance under the Lenox Lease in exchange for a concomitant discount on the purchase of the Wheeler Way Property. Thus, he asserts that he effectively funded the discount (in part), as Island View’s expected rents would be decreased by $4.5 million over the term of the Lenox Lease (and which were not recouped after the defendants sold the property for an immediate profit of $2.5 million). This, he argues, constituted an “investment injury” sufficient to support his § 1962(a) claim because the diverted funds were effectively “invested” by allowing an unknown entity to purchase the Wheeler Way Property at a substantial discount.
We reject this argument. The harm alleged in the complaint — the rental payments diverted from Island View — is a consequence of the allowance itself, and is not derivative of the uses to which the diverted funds were ultimately put. That the unknown entity later purchased the Wheeler Way Property at a discount equal to the amount misappropriated from Island View is of no moment, for we agree with defendants that the alleged harm had already been inflicted. The nature of Ko-lar’s injury is summarized best in his own brief: “Pursuant to the Island View part*361nership agreement, Mr. Kolar is entitled to certain cash distributions of his share of the partnership’s profits. The reduction in rent payable by Lenox as a result of the ‘allowance’ diminishes Island View’s profits, and accordingly, Mr. Kolar’s distributions.” Kolar Br. at 19. This says nothing of either the investment of the diverted funds or of the purchase and sale of the Wheeler Way Property (for which the diverted funds were used). We must assume as true Kolar’s allegation that the defendants ultimately purchased the Wheeler Way Property in part through an investment of the fraudulently obtained discount, but we conclude that the alleged injury “is not specifically linked to the use or investment of income in any named enterprise.” Kehr Packages, 926 F.2d at 1411; see also Lightning Lube, 4 F.3d at 1189 (noting that where the defendants allegedly misappropriated and reinvested proprietary business information, “the real injury to the plaintiff is the theft of its property — whatever form it is in — and not the investment of that property in an otherwise legitimate business”).
We also find unpersuasive Kolar’s argument that he suffered an investment injury as a result of Island View’s lost opportunity to purchase the Wheeler Way Property at a discount. Because Island View was the entity that granted the allowance under the Lenox Lease, Kolar argues that Island View should have been granted the opportunity to purchase the Wheeler Way Property at a discount. Accordingly, he says, his injury (i.e., the lost investment opportunity) arises directly out of defendants’ misappropriated investment. Were we to indulge this argument, however, every investment of fraudulently obtained funds would fall within the ambit of § 1962(a) — a plaintiff could plead that he or she was injured by virtue of the missed opportunity to make the very investment that defendants made with misappropriated monies. We have previously been loathe to expand the scope of § 1962(a) beyond its clear text. See Brittingham, 943 F.2d at 305 (“If this remote connection were to suffice, the use-or-investment requirement would be almost completely eviscerated.... If plaintiffs’ reinvestment concept were accepted, almost every pattern of racketeering activity by a corporation would be actionable under § 1962(a), and the distinction between § 1962(a) and § 1962(c) would become meaningless.”); Glessner, 952 F.2d at 709 (“[I]f investment injury is construed as broadly as plaintiffs suggest, the distinction between sections 1962(a) and 1962(c) would be blurred. We are unwilling to tamper with the congressional scheme.”). Today we adhere to our precedent counseling against blurring the divide between §§ 1962(a) and (c). Under the facts as pleaded, Kolar’s lost opportunity to invest in the Wheeler Way Property does not constitute an “investment injury” sufficient to support his § 1962(a) claim.7 Addition*362ally, although Kolar argues that “[o]ther examples of ‘investment injuries’ abound in the [cjomplaint,” Kolar Br. at 21, we have reviewed the remainder of his claims, and conclude that he has failed to set forth any injury distinct from that caused by the alleged predicate acts of racketeering activity. The District Court correctly dismissed the § 1962(a) claim.
B.
Section 1962(c) prohibits any person employed by or associated with an enterprise engaged in interstate commerce from conducting or participating in the affairs of the enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962(c). The District Court granted the defendants’ motion to dismiss the § 1962(c) claim on two grounds: (1) that the complaint failed to plead an enterprise distinct from the defendants constituting the enterprise; and (2) that the complaint had failed sufficiently to plead a scheme to defraud necessary to support predicate acts of mail and wire fraud. JA 10-14. We may affirm the dismissal on any basis supported by the record, Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc), and we do so by holding that Kolar has failed adequately to set forth a pattern of racketeering activity.
In order to plead a violation of § 1962(c), Kolar must allege: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, 473 U.S. at 496, 105 S.Ct. 3275; Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.2004). As stated, a pattern of racketeering activity requires at least two predicate acts of racketeering activity, which include indictable offenses under the federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343. See Lum, 361 F.3d at 223; 18 U.S.C. § 1961(5). Those statutory provisions, in turn, prohibit the use of the mail or interstate wires for purposes of carrying out any scheme or artifice to defraud. See Lum, 361 F.3d at 223. “A scheme or artifice to defraud need not be fraudulent on its face, but must involve some sort of fraudulent misrepresentation or omission reasonably calculated to deceive persons of ordinary prudence and comprehension.” Id. (quoting Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 528 (3d Cir.1998) (in turn quoting Kehr Packages, 926 F.2d at 1415)). Stated differently, “[tjhe scheme need not involve affirmative misrepresentation, but the statutory term ‘defraud’ usually signifies ‘the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” Kehr Packages, 926 F.2d at 1415 (quoting McNally v. United States, 483 U.S. 350, 358, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (in turn quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924))) (internal citation omitted). To establish predicate offenses under §§ 1341 or 1343, it is the scheme that must be fraudulent, not necessarily the particular mail or wire transmissions that constitute the offenses. See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d *363345, 364 (3d Cir.2003).8 Finally, to establish a “pattern” of predicate acts, Kolar must allege that the acts are related, and amount to or pose a threat of continued criminal activity. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Tabas, 47 F.3d at 1292.
We are mindful that “RICO is to be read broadly,” Sedima, 473 U.S. at 497, 105 S.Ct. 3275, that §§ 1341 and 1343 have been “expansively construed,” Kehr Packages, 926 F.2d at 1416 (citing United States v. Boffa, 688 F.2d 919, 925 (3d Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983)), and that RICO consequently “may be applicable to many ‘garden-variety5 fraud cases,” Tabas, 47 F.3d at 1296. By the same token, however, “RICO claims premised on mail or wire fraud must be particularly scrutinized because of the relative ease with which a plaintiff may mold a RICO pattern from allegations that, upon closer scrutiny, do not support it.” Western Assocs. Ltd. P’ship v. Market Square Assocs., 235 F.3d 629, 637 (D.C.Cir.2001) (quoting Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12, 20 (1st Cir.2000), cert. denied, 532 U.S. 905, 121 S.Ct. 1228, 149 L.Ed.2d 138 (2001)). Having scrutinized Kolar’s complaint in the light most favorable to him, we conclude that the facts alleged fail to support a RICO claim.
“[S]ince the pattern inquiry must assess whether the defendant’s actions amount to or pose a threat of continued criminal activity, it is often helpful to examine the actions which are alleged to form the basis of criminal activity.” Kehr Packages, 926 F.2d at 1413 (internal citations and quotations omitted). Setting aside for the moment the Wheeler Way transaction, the balance of the complaint sets forth no activity containing any “deceptive elements.” Id. at 1416. Rather, the essence of Kolar’s complaint alleges that defendants have “diverted and/or misappropriated monies ... due and payable” to him under purported claims of contractual right. Compl. ¶¶ 28-29. For instance, the defendants allegedly diverted funds from Kolar, claiming that he owed capital-call obligations in connection with his interests in other Affiliates. Id. ¶¶ 28-29, 47, 79, 122-126. Kolar attempts to characterize these contract-based claims of right as “false” and “fraudulent,” but we are unpersuaded. Granting all inferences in Kolar’s favor, defendants’ alleged conduct — even if wrongful as a matter of contract or other state law — was not fraudulent.
The complaint makes clear that defendants asserted (in the e-mails identified in the complaint) the contractual right to use Kolar’s distributions to satisfy his purported capital-call obligations. Kolar, on the other hand, claims that he “has no such obligation to satisfy capital calls, as is plainly set forth in the Separation Agreement and in the applicable Partnership Agreements.’’ Id. ¶29 (emphasis added). The complaint explicitly alleges elsewhere that — in connection with the capital-call withholdings — defendants “falsely asserted] [their] ... entitlement ” to withhold Kolar’s distributions and “falsely asserted] that Mr. Kolar ‘has an obligation to fund’ ” capital shortfalls. Id. ¶ ¶ 123-127 (emphasis added). These allegations set forth disputes sounding in contract.9 *364Kolar cannot successfully transmute them into RICO claims by simply appending the terms “false” and “fraudulent.” See Lum, 361 F.3d at 226 (finding that defendants’ use of the term “prime rate” was not “reasonably calculated to deceive persons of ordinary prudence and comprehension”); Annulli v. Panikkar, 200 F.3d 189, 200 (3d Cir.1999) (“[T]heft by deception, like a simple breach of contract or intentional interference with contract, is not a predicate act of racketeering activity enumerated in § 1961(1).... We will not read language into § 1961 to federalize every state tort, contract, and criminal law action.”) (footnotes omitted); Kehr Packages, 926 F.2d at 1416 (dismissing claims against a particular defendant because the alleged actions was not reasonably intended to deceive); Flip Mortgage Corp. v. McElhone, 841 F.2d 531, 538 (4th Cir.1988) (“[T]his circuit will not lightly permit ordinary business contract or fraud disputes to be transformed into federal RICO claims.”); Blount Fin. Serv. Inc. v. Walter E. Heller and Co., 819 F.2d 151, 152 (6th Cir.1987) (dismissing RICO act in part because “[t]he fact that the parties take different positions under the contract as to the appropriate prime rate, or the fact that the defendant charged too high a ‘prime rate’ and thereby concealed or refused to disclose what the plaintiff considers the true prime rate called for under the contract, does not give rise to a valid claim for fraud.”); United States v. Kreimer, 609 F.2d 126, 128 (5th Cir.1980) (“[T]he [mail fraud] statute does not reject all business practices that do not fulfill expectations, nor does it taint every breach of a business contract. Its condemnation of a ‘scheme or artifice to defraud’ implicates only plans calculated to deceive.”).10
*365Kolar also claims that the defendants withheld partnership disbursements to which he was entitled for the purpose of loaning these funds to other Affiliates, and that the defendants charged wrongful and excessive fees. Compl. ¶¶46, 55, 59, 66, 75, 122-129. The complaint unequivocally demonstrates, however, that these alleged actions were also taken under the various contractual agreements between the parties. See, e.g., id. ¶¶ 66 (“PREI ... charged a construction management fee of 10%, in violation of paragraph 5(c) of the Separation Agreement”), 124(b) (identifying an e-mail that “falsely asserts PREI’s ... entitlement to withhold approximately $2 million of .... [pjroceeds and to subsequently loan said monies to a variety of partnership in which Mr. Kolar has smaller interests ....”) (emphasis added). These allegations of fraud are deficient for the same reasons as are the capital-call allegations.
Given our discussion, we find a pattern of racketeering activity absent in the complaint. Even accepting, in this procedural posture, that the complaint sufficiently alleged fraudulent activity surrounding the Wheeler Way transaction, that single, finite transaction cannot by itself underpin a pattern of racketeering activity. See Efron, 223 F.3d at 21 (“Taken together, the acts as alleged comprise a single effort, over a finite period of time, to wrest control of a particular partnership from a limited number of its partners. This cannot be a RICO violation.”); see also Western Assocs., 235 F.3d at 637 (“[W]e do not understand the Supreme Court to disparage interpreting RICO’s pattern requirement to guard against finding continuity too easily in the context of a single dishonest undertaking .... ” (quoting Efron, 223 F.3d at 20)); Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir.1989) (where the defendant’s “actions were narrowly directed towards a single fraudulent goal [and] involved a limited purpose,” observing that “if the pattern requirement has any force whatsoever, it is to prevent ... ordinary commercial fraud from being transformed into a federal RICO claim.”).11
*366For the foregoing reasons, we will affirm the District Court’s dismissal of Ko-lar’s § 1962(c) claim.12
C.
After dismissing Kolar’s claims under §§ 1962(a) and (c), the District Court next addressed his conspiracy claim under § 1962(d). That provision prohibits any person from conspiring to violate subsections (a), (b), or (c). 18 U.S.C. § 1962(d). Quoting our summary statement in Lightning Lube v. Witco Corp., 4 F.3d at 1191, that “[a]ny claim under section 1962(d) based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the substantive claims are themselves deficient,” the District Court dismissed the § 1962(d) claim. Kolar argues that this was error because a RICO conspiracy claim may lie in the absence of an actionable substantive RICO claim. Given our discussion above, we agree with the District Court’s disposition.
It is true that we clarified the scope of our Lightning Lube holding in Rehkop v. Berwick Healthcare Corp., 95 F.3d 285, 289 (3d Cir.1996). In Rehkop, although the plaintiff had adequately pleaded a violation of § 1962(c), he failed to allege a redressable injury from the violation, and thus could not recover under § 1964(c). Relying on Lightning Lube, the district court accordingly dismissed the conspiracy claim. Discussing our earlier decision in Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162 (3d Cir.1989), abrogated on other grounds, Beck v. Prupis, 529 U.S. 494, 505-06, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000), we vacated the dismissal. We stated:
The [district] court ... misconstrued our holding in Lightning Lube. There we held that in order to state a violation of section 1962(d) for conspiracy to violate subsection (a), (b), or (c), the plaintiff must establish that the defendants violated (or were going to violate) one of those subsections. The problem in Lightning Lube was that the actions alleged to constitute violations of subsections 1962(a), (b), and (c) were not violations of these subsections, and thus they also failed to serve as the object of a section 1962(d) conspiracy.
Lightning Lube is thus distinguishable. In this case, Rehkop’s allegations state a violation of section 1962(c). The reason he cannot pursue such a claim is that he was not harmed by the section 1962(c) violation. Nonetheless, the defendants’ alleged violation of section 1962(c) can serve as the object of a section 1962(d) conspiracy, and if Rehkop was harmed by reason of the conspiracy, he may pursue a section 1962(d) claim.
Thus, this case is within Shearin’s rule that a plaintiffs allegation that he or she was harmed in furtherance of a conspiracy under 1962(d) states a claim for relief under section 1964(c)....
Rehkop, 95 F.3d at 29013; cf. Efron, 223 *367F.3d at 21 (“A conspiracy claim under section 1962(d) may survive a factfinder’s conclusion that there is insufficient evidence to prove a RICO violation ... but if the pleadings do not state a substantive RICO claim upon which relief may be granted, then the conspiracy claim also fails.”) (emphasis and internal citations omitted).
Given our resolution of Kolar’s §§ 1962(a) and (c) claims above, we conclude that the District Court did not err in dismissing his § 1962(d) claim. Because we agree that Kolar has failed to allege a pattern of racketeering activity, he has consequently failed to establish a substantive violation of §§ 1962(a) or (c). Dismissal of the conspiracy claim was therefore appropriate under Lightning Lube.
III.
Kolar argues that he should have been granted leave to amend his complaint. In his brief opposing the defendants’ motion to dismiss, Kolar requested — in two of 54 footnotes — that in the event the District Court granted the motion, it permit him to amend his complaint. JA 157 n. 5, 172 n. 38. He also requested leave to amend during oral argument on the motion. JA 298. At no time did he supply the District Court with a proposed amended complaint. The District Court did not address Kolar’s request for leave to amend, but instead ordered the clerk to mark the case closed. JA 16.
Relevant here, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).14 “Amendments, although liberally granted, rest within the sound discretion of the trial court under Fed.R.Civ.P. 15.” Massarsky v. Gen. Motors. Corp., 706 F.2d 111, 125 (3d Cir.1983). Thus, while we would normally review for abuse of discretion, Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000), Kolar argues that because the District Court did not provide an explanation for ignoring his request to amend, its decision is per se an abuse of discretion under Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). True, “[wjhile a District Court has substantial leeway in deciding whether to grant leave to amend, when it refuses this type of request without justifying its decision, this action is ‘not an exercise of its discretion but an abuse of its discretion.’ ” Lake, 232 F.3d at 373 (quoting Foman, 371 U.S. at 182, 83 S.Ct. 227). However, “[n]ot providing a justification for a denial of leave to amend ... does not automatically constitute an abuse of discretion as long as the court’s rationale is readily apparent from the record on appeal.” Id. at 373-74. Accordingly, we have recognized that a plaintiffs “failure to provide a draft amended complaint would be an adequate basis on which the court could deny [his or her] request [to amend].” Id. at 374; see also Fletcher-Harlee, 482 F.3d at 252 (“[W]e *368have held that a failure to submit a draft amended complaint is fatal to a request for leave to amend.... Thus, [in prior cases], we held that a district court need not worry about amendment when the plaintiff does not properly request it.... Here, [plaintiff] has not [submitted a draft amended complaint], and its failure to do so is fatal to its request.”) (citing cases).
Kolar admits that he failed to supply the District Court with a draft amended complaint, but argues that because defendants did not object to the omission, the issue is waived. We disagree. In the absence of a proper application for leave to amend, there was nothing to which defendants could, or were obligated to, object. Cf. Ramsgate Court Townhome Ass’n v. W. Chester Borough, 313 F.3d 157, 161 (3d Cir.2002) (“[Plaintiff] never filed a motion to amend, nor did it provide the district court with a proposed amended complaint. As a consequence, the court had nothing upon which to exercise its discretion.”). The burden to supply the District Coui't with a draft amended complaint rested with the plaintiff; having failed to satisfy this condition precedent, we find that the District Court did not abuse its discretion when it failed to address Kolar’s threadbare request to amend.
IV.
For the foregoing reasons, we will affirm the District Court’s order.
. During the course of this dispute, PREI altered its corporate name. We continue use of PREI herein.
. Defendant Preferred Real Estate Developers, L.P. ("PRED") is a limited partner of each Affiliate. Because many of PREI’s principals have ownership interests in PRED, the Affiliates also generate working capital from those principals (on a pro rata basis) through their ownership shares in PRED.
. Counts III through VI set forth additional breach-of-contract claims against PREI, PRED, Rivertown, Hamilton, and Princeton. These claims involve similar diversions of funds and construction management fees allegedly caused by defendants. See Compl. ¶¶ 52-77. We do not discuss these allegations in detail.
. Kolar has since re-filed his state-law claims in the Court of Common Pleas, Philadelphia County. That action is currently pending.
. The District Court had jurisdiction over Kolar's RICO claims pursuant to 18 U.S.C. § 1964(c) and 28 U.S.C. § 1331. It had supplemental jurisdiction over Kolar's state-law claims pursuant to 28 U.S.C. § 1367. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District Court’s final order is plenary. Atkinson v. LaFayette Coll., 460 F.3d 447, 451 (3d Cir.2006). We must accept all well-pleaded facts as true and draw all reasonable inferences in plaintiff's favor, but we may disregard any legal conclusions. Fowler, 578 F.3d at 210-11 (discussing Ashcroft v. Iqbal, - U.S. -, -, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)). So long as the complaint sets forth a “plausible” claim to relief, defendants’ motion to dismiss must fail. United States Dep't of Transp. ex rel. Arnold v. CMC Eng’g, 564 F.3d 673, 676 (3d Cir.2009); Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008).
. Kolar argues that the Supreme Court's decision in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), undercuts a “use or investment injury” requirement. He is incorrect. “A violation of § 1962(c) ... requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Id. at 496, 105 S.Ct. 3275 (footnote omitted). The Supreme Court in Sedima held that § 1962(c) did not require a separate “racketeering injury” because "the compensable injury necessarily is the harm caused by" conduct meeting the four required elements — what the Court termed "the essence of the violation.” Id. at 497, 105 S.Ct. 3275. For claims asserted under § 1962(a), however, the "essence of the violation” is the investment of racketeering proceeds in an enterprise. Because a plaintiff must have been injured “by reason of” a § 1962(a) violation in order to recover, 18 U.S.C. § 1964(c), Ko-lar must plead and prove injury flowing from that investment of racketeering proceeds in order to state a claim. We have previously rejected arguments identical to Kolar's, see Glessner v. Kenny, 952 F.2d 702, 709 (3d Cir.1991), and we find no cause (nor do we have authority) to change course here.
. Kolar refers us to Lugosch v. Congel, 443 F.Supp.2d 254 (N.D.N.Y.2006), arguing that a misappropriation of partnership opportunities can result in an investment injury for § 1962(a) purposes. We have no quarrel with this general proposition. But in Lugosch and the case upon which it relies, Ideal Steel Supply Corp. v. Anza, 373 F.3d 251 (2d Cir.2004), rev’d on other grounds, 547 U.S. 451, 460-61, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006), the courts permitted a § 1962(a) claim to proceed not simply because a partnership opportunity had been misappropriated, but because the misappropriated funds were invested in enterprises geographically near the plaintiffs', which would presumably siphon their customer base and revenues. The district court in Lugosch specifically described the nature of the investment injury as follows:
[Tjhere is evidence from plaintiffs’ expert ... that plaintiffs have been damaged as a result of defendants’ diversion of potential corporate opportunities, specifically, the di*362version .... of the goodwill and infrastructure developed by the existing mall Partnerships by building adjacent shopping centers, and that plaintiffs may also have been damaged to the extent that stores in S & R centers competed with Partnership Properties and siphoned off their customers.
443 F.Supp.2d at 270-71 (citing Anza, 373 F.3d at 264) (emphasis added); see also Anza, 373 F.3d at 264 ("[T]he complaint alleges that defendants used profits gained from the operation of their ... scheme at National Queens location to fund the opening of the retail outlet in the Bronx near [plaintiffs] outlet in that borough. ... The complaint adequately stated a claim on which can be granted under § 1964(c) for a violation of § 1962(a).") (emphasis added). We decline Kolar's invitation to dilute the investment-injury requirement such that § 1962(a) reaches every misappropriation of a business opportunity.
. Additionally, Kolar's allegation of mail and wire fraud must be pleaded with particularity pursuant to Fed. R. Civ. P 9(b). That is, he must plead either the "date, place or time” of the fraud, or through "alternative means of injecting precision and some measure of substantiation into [his] allegations of fraud.” Lum, 361 F.3d at 224 (quoting Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984)) (internal quotation marks omitted).
. Moreover, the complaint identifies one email in which the defendants stated to Kolar *364that if he wanted to prevent further withhold-ings, "we suggest that the best option for you is to go to court.” Compl. ¶ 123(d). Kolar emphasizes that this statement demonstrates the defendants’ intent to continue in their wrongful conduct. This may be true, but tire statement and the e-mail’s remaining text make explicit that the defendants were actively asserting a contractual right to withhold the funds, and that the threatened conduct was not fraudulent. The e-mail further stated to Kolar that ”[i]n future [sic] if you so desire we can hold back monies from properties you will be receiving distributions [sic] to fund your share of these capital calls. ..." Compl. ¶ 123(c) (emphasis added, corrections in original). The other e-mails identified in the complaint similarly document defendants' claims of right under the various agreements. While mail or wire transmissions need not themselves be fraudulent to constitute predicate racketeering offenses, the e-mails identified in the complaint affirmatively demonstrate that the defendants’ conduct was not "reasonably calculated to deceive a person of ordinary prudence and comprehension.” Kehr Packages, 926 F.2d at 1416 (quoting United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir.1978)).
. We reject Kolar’s attempt to characterize the defendants' activity as "embezzlement.” Although embezzlement falls within RICO's reach, see United States v. Boidi, 568 F.3d 24, 31 (1st Cir.2009), the Supreme Court in Carpenter v. United States reiterated the requirement that an alleged scheme to defraud for mail and wire fraud purposes be accompanied by some form of "trick, deceit, chicane or overreaching.” 484 U.S. 19, 26, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (quoting Hammerschmidt, 265 U.S. at 188, 44 S.Ct. 511). The Court then repeated the definition of embezzlement: ”[T]he fraudulent appropriation to one's own use of the money or goods entrusted to one’s care by another.” Id. (quoting Grin v. Shine, 187 U.S. 181, 189, 23 S.Ct. 98, 47 L.Ed. 130 (1902)) (emphasis added, internal quotation marks omitted). Kolar's attempt fails, therefore, to shoehorn the defendants' activity into the crime of embezzlement, because the offense also requires fraudulent activity, which we find lacking here.
We also reject Kolar’s argument that the complaint adequately set forth predicate mail and wire fraud offenses by virtue of O'Neil’s alleged breach of fiduciary duties arising from his controlling position in the PREI organization. We recently held that a corporate officer's breach of fiduciary duties owed to the corporation may suffice to establish honest services fraud under 18 U.S.C. § 1346 (which *365falls within the reach of the mail and wire fraud provisions). See United States v. McGeehan, 584 F.3d 560, 570-71 (3d Cir.2009). The appellants argued there that “not every breach of an employee's fiduciary duty to his employer constitutes mail or wire fraud," and we did not disagree. Id. at 571 n. 10. We "h[e]ld only that a collateral fiduciary duty can provide the source of the honest services owed under §§ 1341, 1343, and 1346.” Id. We then limited the breadth of our holding in the same discussion: “In order to give rise to criminal liability, however, the deprivation of honest services must have been the result of a 'scheme or artifice ... with the specific intent to defraud.’” Id. (emphasis added). Accordingly, even if O'Neil's conduct constituted a breach of his fiduciary duties to the PREI partners (and in particular, Kolar), his breach — taken under the purported protection of the various partnership agreements — was not the result of a scheme to defraud. Section 1346 therefore offers Kolar no refuge here.
. Further bolstering our conclusion that Ko-lar has failed adequately to plead a pattern of racketeering activity is his allegation that the defendants “quickly sold” the Wheeler Way Property to a third party for a substantial profit. Compl. ¶ 35. Because the continuity prong of the pattern analysis is a "centrally temporal concept," Tabas, 47 F.3d at 1292 (quoting H.J., Inc., 492 U.S. at 241-42, 109 S.Ct. 2893), the speed with which the defendants finalized the Wheeler Way transaction supports our conclusion that a satisfactory RICO pattern has not been alleged. And as we have already noted, see supra note 9, the defendants' tacit threat that they would continue their conduct indefinitely is insufficient to establish open-ended continuity because the threatened continued activity was not fraudulent, and thus not racketeering activity. See id. at 1295 ("If a RICO action is brought before a plaintiff can establish long-term criminal conduct, the 'continuity' prong may still be met if a plaintiff can prove a threat of continued racketeering activity.”) (emphasis added).
. We note that our discussion of the § 1962(c) claim applies with equal force to the § 1962(a) claim as well. See 18 U.S.C. § 1962(a). Given our analysis, we need not pass upon the District Court's alternative bases for dismissing Kolar’s substantive RICO claims.
. In Beck, the Supreme Court rejected our application of the rule announced in Shearin and followed in Rehkop (i.e., that the termination of one's employment (a non-racketeering act) is an injury potentially redressable under RICO’s conspiracy provision). 529 U.S. at 505-06, 120 S.Ct. 1608. The Supreme Court held instead that a plaintiff must allege that he or she was injured by an overt conspiratorial act that is independently wrongful under RICO. Id. The Court expressly left open, however, the distinct issue presented here: whether a § 1962(d) claim may lie in the absence of an actionable claim under §§ 1962(a)-(c). Id. at 506 n. 10, 120 S.Ct. 1608. Thus, although the application of the Shearin rule has been overturned by Beck, the underlying premise remains sound in this *367Circuit: a plaintiff may plead a RICO conspiracy in the absence of an actionable claim under §§ 1962(a)-(c) so long as the complaint complies with Beck and the substantive claims fail only for lack of a causative injury. If the substantive RICO claims fail on the merits, as they do here, Lightning Lube controls.
. We reject out of hand Kolar's argument that he is entitled to amend his complaint under Fed.R.Civ.P. 15(a)(1). While Kolar had the right under that provision to file an amended complaint in response to defendants’ motion to dismiss, see Kelly v. Del. River Joint Comm’n, 187 F.2d 93, 95 (3d Cir.1951), upon the District Court's order granting the motion and dismissing the complaint, amendment under Rule 15(a)(1) no longer remained an option. See id.; Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007).
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OPINION
PER CURIAM.
Petitioner Menderim Biboski is an ethnic Albanian and a citizen of Macedonia. He petitions for review of the Board of Immigration Appeals’s (“BIA”) decision affirming a decision of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). For the following reasons, we will deny Biboski’s petition for review.
I.
Biboski entered the United States and filed an affirmative application for asylum and related relief in April 2001. He claimed that he had been persecuted in Macedonia due to his Albanian ethnicity and due to his and his father’s activities with the Albanian Democratic Party (“PPD”). On June 14, 2001, Biboski was charged as removable under 8 U.S.C. § 1182 (a) (6) (A) (i).
Biboski’s claim of past persecution was based in large part on two incidents that occurred immediately before he came to the United States. At his removal proceedings, he asserted that, on March 30, 2001, he participated in a large demonstration organized by the PPD to protest the alleged killing of three people who were being held in police custody. Biboski testified that 2,000-3,000 people participated in the demonstration and that the police attempted to disperse the protestors by shooting guns in their direction. He also stated that the police were beating people, including him, who were located at the front of the protesters’ line. Biboski was able to escape, and testified that he did not seek medical attention for his injuries.
Then, on April 2, 2001, five police officers came to Biboski’s house and held a gun to his head while they beat his parents. Biboski testified that the police officers sought to arrest him and his brother primarily because they had not responded to the conscription notices that they had received. He also contended that they wanted to arrest him due to his participation in the March 30th protest. Biboski managed to escape without injury and entered the nearby forest and walked to the *370next village. The next day, he entered Albania and from there traveled to the United States.
Biboski submitted an affidavit from his father in support of his claims. The affidavit does not, however, corroborate Bibo-ski’s assertion that the police sought to arrest him because of his or his father’s activities with the PPD, as it states that the police “came physically looking for our two sons ... to take them to complete their military duties. They would enter our homes looking for weapons and would physically beat us repeatedly.” According to Biboski, the police routinely visit his parents looking for him, and he believes that if he returns to Macedonia, he will be arrested or killed because of his participation in the 2001 protest and his failure to serve in the military.
The IJ denied all Biboski’s claims, determining that the “alleged acts committed against [him] do not fit within the meaning of persecution.” The IJ found that Bibo-ski suffered no critical injuries from the March 30, 2001 beating and noted that he did not claim that he was injured during the April 2nd incident. As such, the acts were not sufficiently “severe to amount to persecution.” The IJ also concluded that, even if the incidents were sufficiently severe and frequent, Biboski had not established that his alleged persecutors were motivated by his ethnicity or political opinion, imputed or otherwise. Thus, he could not qualify as a refugee. See 8 U.S.C. § 1231(b)(3)(A); Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 344-45 (3d Cir.2008) (explaining that one may qualify for asylum based on an imputed political opinion). As to Biboski’s fear of future persecution, the IJ explained that he had not submitted objective evidence corroborating his PPD membership, that the United States Department of State country reports did not contain conclusive findings that PPD members were systematically targeted, and that possible arrest for failing to enlist in the army “does not give rise to a well-founded fear of future persecution.”
The BIA affirmed the IJ’s decision, agreeing that “the two described incidents do not amount to persecution based on a protected ground.” Because Biboski did not establish that he was subjected to past persecution, the BIA did not apply the presumption that Biboski would more likely than not be persecuted if he returned to Macedonia and found that he had not “set forth any specific facts” supporting such a claim. The BIA then determined that because Biboski did not establish his eligibility for asylum, he necessarily failed to satisfy the higher standard required for withholding of removal, and had not presented any credible evidence establishing that someone in his situation would be tortured in Macedonia.
Through counsel, Biboski now petitions for review of the BIA’s final order of removal.
II
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). The BIA’s decision is reviewed under the substantial evidence standard and will be upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted). Here, the BIA’s conclusions concerning Biboski’s failure to meet his burden of proof regarding past persecution or a well-founded fear of future persecution are supported by substantial evidence. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).
The BIA determined that neither of the two-described incidents, considered alone or cumulatively, amounted to persecution. It explained that, while Biboski *371may have been beaten by police officers during the March 2001 demonstration, he admitted that they had not specifically targeted him or arrested him, and that he did not receive substantial injuries requiring medical attention. The BIA thus affirmed the IJ’s finding that the harm that Biboski suffered was not so severe as to rise to the level of persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005); cf. Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir.2005) (finding that multiple severe beatings and intimidation tactics rose to the level of persecution).
As to the April 2001 incident at Biboski’s home, the BIA agreed that Bibo-ski had not established that the alleged persecutors were motivated by one of the statutorily-protected grounds: race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Although Biboski testified that the police officers’ actions were, at least in part, based on his and his father’s activities with the PPD, his father’s affidavit does not support this contention. See Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812 (requiring at least some proof that the persecutor was motivated in part by the petitioner’s protected status). Further, as the BIA determined, even if the police sought to arrest Biboski for failing to comply with his military duties, sovereign nations have the right to enforce their conscription laws, and “penalties for evasion are not considered persecution.” Lukwago v. Ashcroft, 329 F.3d 157, 168-69 (3d Cir.2003) (internal citation and quotation omitted). Exceptions arise only in rare cases where, on account of one of the five statutorily-protected grounds, a petitioner faces disproportionately severe punishment. Kibinda v. Att’y Gen., 477 F.3d 113, 121 (3d Cir.2007). Here, while the Macedonian police officers’ tactics may have been deplorable, Biboski has not shown that his treatment was particularly harsh due to his political opinion — imputed or otherwise — or his Albanian ethnicity. The BIA’s decision that Biboski did not establish past persecution is thus supported by substantial evidence.
As to Biboski’s fear of future harm, the BIA properly agreed with the IJ that Biboski did not establish a likelihood of future persecution based on his political opinion or ethnicity — or that a pattern or practice of persecution exists against ethnic-Albanians or PPD members. See Lie, 396 F.3d at 536. And, although Biboski may be conscripted into the military or prosecuted for failing to complete his military duties, fear of prosecution for violating “fairly administered laws” generally does not qualify one as a refugee unless the punishment is severe and is motivated by one of the statutorily-enumerated factors. See Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004). Biboski has not demonstrated that such punishment is likely if he returns to Macedonia.
In sum, the evidence does not compel us to overturn the BIA’s decision to deny the petitioner’s claims, and for the foregoing reasons, we deny Biboski’s petition for review.
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OPINION OF THE COURT
PER CURIAM.
Yi Mei Zhu (lead respondent) and her husband, Jie Jiang (derivative respondent) petition for review of the final removal order issued by the Board of Immigration Appeals (“BIA”) affirming the denial of Zhu’s application for asylum, withholding of removal and protection under the United Nations Convention Against Torture (“CAT”). For the reasons set forth below, we will deny the petition.
We highlight only those facts that are pertinent to our analysis. Zhu and Jiang, natives and citizens of the People’s Republic of China, come from that country’s Fu-jian Province. They entered the United States without valid visas or other entry documents. They conceded removability and requested asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure.
According to their testimony, Zhu and Jiang were married in a traditional ceremony in 1995, but they could not register the marriage with the government because Jiang was underage. Consequently, when Zhu became pregnant in May 1995, she went into hiding to avoid the Fujian Province family planning authorities. In November 1995, the authorities tracked her down and took her to a local hospital against her will where she received an injection to induce labor. She was then transported immediately to the Fouchou City Hospital where she aborted the pregnancy. Zhu was discharged from the hospital three days later. Zhu and Jiang registered their marriage in March 1996 and, in February 1997, Zhu had a son. The family planning authorities forced Zhu to have an intra-uterine device (IUD) inserted after their son’s birth. When Zhu and Jiang decided to have a second child, they fled to avoid China’s coercive family planning policies. Once in the United States, Zhu had her IUD removed. Their second child was born in the United States in 2004.
In support of her allegation that she underwent a forced abortion, Zhu submitted her out-patient medical record from Fouchou City Hospital. The Government submitted a State Department investigative report indicating, among other things, that the contents of the out-patient record were fabricated.1 The Report was based on a certification by the Deputy Director of the Fouchou City Hospital that the patient record number “00025145” was not used in 1995; induced abortions could not be done on an out-patient basis; standard medical terminology was not used in the record; and the doctor or mid-wife whose signature appeared on the document never worked at the hospital. (J.A. at 307.)
The IJ denied asylum relief as untimely and denied withholding of removal and CAT relief because Zhu failed to show that she was entitled to relief. The IJ cited certain evidentiary inconsistencies and contradictions that had “a severe impact on the respondent’s [Zhu’s] credibility.” (J.A. 37.) First, she noted inconsistencies in the testimonies of Zhu’s husband and her sister concerning Zhu’s and Jiang’s arrival in the United States. Second, the IJ found that the investigative report, which indicated that Zhu’s out-patient medical record was fabricated, seriously *380undermined her testimony about a forced abortion in November 1995. The IJ thus concluded that, absent credible evidence, Zhu failed to show that she had suffered past persecution.
The IJ also found that Zhu failed to show a well-founded fear of future persecution based on the State Department’s 2004 Country Report on Human Rights Practices in China (2004 Country Report), which indicated that China allowed couples to have two children if the births were separated by a period of years. Noting that there was a seven-year gap between the births of Zhu’s two children, the IJ concluded that there was insufficient evidence to find that the respondents would be forcibly sterilized in China for having a second child in the United States. The BIA affirmed the IJ’s untimeliness determination as to asylum and her adverse credibility determination as to all claims for relief, concluding that Zhu failed to meet her burden of establishing eligibility for asylum, withholding of removal, and CAT relief.
In most cases, we have jurisdiction to review a final order of removal involving the denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158 provides that no court shall have jurisdiction to review any determination regarding the timeliness of an asylum application and the applicability of the exceptions. See Tarrawally v. Ashcroft, 338 F.3d 180, 184-85 (3d Cir.2003). Under the REAL ID Act, we have jurisdiction to review constitutional claims and questions of law, but not factual or discretionary determinations related to the timeliness of an asylum application. Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006); 8 U.S.C. § 1252(a)(2)(D). Zhu has not raised any legal or constitutional claims regarding the IJ’s determination that her asylum claim was untimely.2 Because we lack jurisdiction to consider her asylum application for timeliness, our review is limited to issues relating to the denial of withholding of removal and relief under the CAT.
To be eligible for withholding of removal, Zhu must demonstrate that it is more likely than not that her life would be threatened in China on account of race, religion, nationality, membership in a particular social group, or political opinion. Tarrawally, 338 F.3d at 186; 8 U.S.C. § 1231(b)(3)(A). To be eligible for CAT relief, Zhu must demonstrate that it is more likely than not that she would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
When, as here, the BIA substantially relies on the IJ’s adverse credibility determination, the Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We may reverse the BIA’s decision only if the record permits but one reasonable conclusion that was not the one reached by the Board. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The IJ’s adverse credibility finding must be upheld unless any reasonable adjudicator would be compelled to conclude to the contrary. Fiadjoe v. Attorney General, 411 F.3d 135, 153 (3d Cir.2005). Only inconsistencies going to the heart of the claims will be deemed to compromise credibility.3 Chukwu v. Attor*381ney General, 484 F.3d 185, 189 (3d Cir.2007).
The IJ’s adverse credibility determination is supported by substantial evidence. Zhu testified that Fujian Province Family Planning authorities forced her to have an abortion very late in her pregnancy in 1995, but she submitted a fabricated outpatient medical record as corroborating proof. Her submission of a false document to support her claim wholly undermined her credibility. For this reason alone, a reasonable factfinder would not be compelled to conclude that the IJ’s adverse credibility finding was erroneous. See Tarrawally, 338 F.3d at 187 (holding that an adverse credibility determination is supported by substantial evidence, even where only some of the stated bases are appropriate).4
Citing Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir.2004),5 she argues that the record lacks any evidence from which a reasonable factfinder could infer that Zhu knew that the out-patient medical record was fabricated. (Pet. Br. at 7-8.) The Government counters that we lack jurisdiction to consider Zhu’s argument because she failed to present it before the BIA. The Court’s jurisdiction is limited under § 242(d)(1) of the INA, to cases where the petitioner “has exhausted all administrative remedies available as of right....” 8 U.S.C. § 1252(d)(1); see Ab-dulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). A petitioner has exhausted his administrative remedies if he raises all issues before the BIA. Based on the notice of appeal and Zhu’s brief before the BIA, we conclude that the BIA was not given sufficient notice of Zhu’s claim that she was unaware that the medical record was falsified. See Lin v. Attorney General, 543 F.3d 114, 121 (3d Cir.2008). Accordingly, we lack jurisdiction to review the unexhausted claim.
Zhu also argues that the IJ erred in giving the investigative report “enormous weight,” thereby failing to consider her credibility based on her testimony and demeanor. We disagree. By crediting the State Department’s investigative report, the IJ necessarily rejected Zhu’s testimony that someone at Fouchou City Hospital gave her the out-patient record personally while she was at the hospital and that she kept the record in her special drawer for important documents in her home in China, where it remained until her relatives retrieved it and sent it to the United States at her request. (J.A. at 279-81.) Even if Zhu’s demeanor was exemplary, faced with such contradictory evidence, the IJ had to accept one piece of evidence and reject the other. Here, there is substantial evidence supporting the IJ’s conclusion to credit the investigative report.6 Hence, *382we are not compelled to conclude that the IJ erred.
With respect to her well-founded fear of persecution claim, we agree with the BIA that Zhu failed to carry her burden of demonstrating that it is more likely than not that she or her husband would be sterilized upon their return to China. The 2004 State Department Country Report for China supports the conclusion that Zhu failed to show that her fear of sterilization was objectively reasonable. See Yu v. Attorney General, 513 F.3d 346, 348-49 (3d Cir.2008); In re C-C-, 23 I. & N. Dec. 899, 901-04 (BIA 2006) (concluding that, without additional evidence to the contrary, recent State Department Country Reports indicate that petitioner’s claimed fear of sterilization was not reasonable). Zhu’s testimony provided no evidence contradicting the Country Report.
Based on the foregoing, we concluded that the IJ’s adverse credibility finding was amply supported by the record, and thus will not upset the IJ’s determination that Zhu was not entitled to withholding of removal or for relief under the CAT. We further conclude that the IJ’s determination that Zhu failed to demonstrate a well-founded fear of persecution was supported by substantial evidence. Accordingly, we will deny the petition for review.
. The Report also verified the authenticity of the "periodic gynecological examination certificate” Zhu submitted to support her claim that her IUD was inserted by Family Planning authorities in China, and noted the examiners’ unsuccessful attempts to authenticate a letter from her husband's employer. (J.A. at 306.)
. The IJ ruled that Zhu failed to show that her asylum application was timely based on “the obvious contradictions between the male’s [Jiang’s] testimony and the testimony of the witness [Bo Yuan Zhu] and the total lack of documentation [like an airplane ticket stub] regarding the arrival of the female respondent [Zhu] into the United States.” (J.A. 37) In her brief, Zhu claimed that the IJ erred as a matter of fact in discrediting the evidence as to timeliness.
. Section 101(a)(3) of the REAL ID Act “applies only to cases where the applicant applied for asylum or other relief after May 11, 2005,” and accordingly does not apply in this *381case. Chukwu v. Attorney General, 484 F.3d 185, 189 (3d Cir.2007).
. Although it does not change the result in this case, we note that, in making an adverse credibility determination, the IJ inappropriately relied on inconsistencies in testimony pertaining to the timeliness of Zhu's asylum application. These inconsistencies clearly do not go to the heart of her past persecution claim.
. In Yeimane-Berhe, the Ninth Circuit held that an IJ's adverse credibility finding based solely on a fraudulent medical record was not supported by substantial evidence where there was no evidence that the petitioner knew that the record was fabricated and nothing else in the record suggested that the petitioner was not credible. 393 F.3d at 911-13.
.Zhu's assertion that the IJ should have taken into account the fact that Chinese officials would not be willing to confirm that persecution had occurred, is belied by the Chinese authorities willingness to confirm the authenticity of the periodic gynecological examination.
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*385OPINION
SMITH, Circuit Judge.
In March of 2005, a jury convicted Martin Purnell of four counts of distributing more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The United States District Court for the District of Delaware sentenced Purnell to, inter alia, a below guidelines sentence of 138 months of imprisonment on each count, with the terms of each count to run concurrently. On appeal, we affirmed Purnell’s conviction, vacated his sentence, and remanded for resentencing pursuant to Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). United States v. Purnell, 317 Fed.Appx. 118 (3d Cir.2008).
On remand, Purnell’s pre-sentence report was revised using the 2008 Guidelines Manual, which incorporated the two level decrease in § 2D1.1 for crack cocaine offenses required by Amendment 706 of the Sentencing Guidelines. See United States v. Wise, 515 F.3d 207, 219 (3d Cir.2008) (observing that the general effect of Amendment 706 to the United States Sentencing Guidelines was a two level decrease in the offense level). In addition, because Purnell met with law enforcement authorities following remand, he qualified for the safety valve provision in 18 U.S.C. § 3553(f) and U.S.S.G. § 501.2(a), which further decreased his offense level by two points and rendered the mandatory minimum of ten years inapplicable. As a consequence, his total offense level decreased from 34 to 30. Because his criminal history category remained a level I, his guideline range decreased from 151 to 188 months, to 97 to 121 months. At the conclusion of the resentencing proceeding, the District Court sentenced Purnell to, inter alia, 102 months of imprisonment on each of the four counts, with the terms to run concurrently. This timely appeal followed.1
Purnell argues that his sentence is procedurally unreasonable because the District Court failed to fully consider the factors set forth in 18 U.S.C. § 3553(a), particularly the disparity between crack cocaine sentences and powder cocaine sentences. According to Purnell, the District Court failed to consider his argument that the revised guideline range, even as modified by Amendment 706, still reflected a significant disparity between crack and powder cocaine sentences. He further argues that the District Court treated the guideline range as though it was mandatory.
We review a claim that a district court committed procedural error in sentencing under an abuse of discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). “[T]he party challenging the sentence has the burden of demonstrating unreasonableness.” Id.
We conclude that Purnell has failed to meet his burden. The District Court properly calculated the guideline range, noting that it had been revised to reflect the lower offense level applicable to the distribution of crack cocaine pursuant to Amendment 706 and the benefit of qualifying under the safety valve provision. The Court pointed out that there were no objections to the presentence report. Accordingly, consistent with the Supreme Court’s instruction in Gall v. United States, the District Court afforded “both parties an opportunity to argue for whatever sentence they deem[ed] appropriate[.]” 552 U.S. 38, 49, 128 S.Ct. 586, 169 *386L.Ed.2d 445 (2007). The Court also heard the impassioned testimony of Purnell’s pastor, his aunt, and his mother, all of them urging a lenient sentence.
At the conclusion of this testimony, the District Court observed that all but one of the § 3558(a) factors had been accounted for in the guideline analysis, and that the “one factor not included in the calculation [wa]s this defendant’s personal history and characteristics.” Purnell argues that this statement shows that the District Court considered only his personal history and characteristics, instead of all of the § 3553(a) factors, and that it treated the guideline range as though it was mandatory. We disagree in light of the Court’s subsequent remarks. It noted that on remand Purnell’s revised guideline range included the lower offense level applicable to crack cocaine, that Purnell no longer faced the mandatory minimum of ten years, that his personal life was marred by an “unstable home life,” and that he had resorted to distributing drugs and “poisoning his community.” The District Court then exercised its discretion and weighed these circumstances to determine if on resentencing a variance from the “revised advisory guideline range” of 97 to 121 months was warranted, and concluded that a within guidelines sentence was needed to “provide just punishment and adequate deterrence.” This analysis not only demonstrated that the District Court was well aware of the advisory nature of the guidelines, it also complied with the Gall Court’s mandate that the District Court “make an individualized assessment based on the facts presented.” Id. at 50, 128 S.Ct. 586.
We conclude that the District Court’s sentence was procedurally sound. For that reason, we will affirm the District Court’s sentence of 102 months of imprisonment.
. The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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OPINION
SMITH, Circuit Judge.
In June of 1996, Irvington Police Department Officers Rucker, Aleman, and Stouch responded to a noise complaint at approximately 2:00 A.M. at the residence of Marie E. Antoine, the sister of Appellant Max D. Antoine (Antoine). The officers were not welcome. Unfortunately, the matter escalated beyond a verbal confrontation, resulting in Antoine’s arrest and physical removal from the premises. Thereafter, Antoine, his wife, his daughter, and his sister filed a complaint in the United States District Court for the District of New Jersey, alleging that the officers, and others, violated their federal constitutional rights as well as state tort law.1
All of the defendants moved for summary judgment. In a comprehensive decision filed July 12, 2006, the District Court granted summary judgment in favor of the defendants, except for a few of Antoine’s claims against Officers Rucker, Aleman, and Stouch. Antoine’s surviving claims were brought under (1) § 1983, alleging false arrest, false imprisonment, and excessive force in violation of the Fourth Amendment; (2) §§ 1981 and 1983, alleging selective enforcement and an equal protection violation; and (3) state law for assault, battery, and negligence.
Thereafter, the state criminal charges against Antoine arising out of the noise complaint were resolved through New Jersey’s Pretrial Intervention Program. See N.J.S.A. § 2C:43-12. During the court proceeding, Antoine admitted that he resisted arrest, and one of the criminal charges was amended to a charge of fourth degree assault on a police officer. Officers Rucker, Aleman, and Stouch filed a second motion for summary judgment, contending that Antoine’s Fourth Amendment and state law claims were barred pursuant to Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In support of their motion, the officers appended a transcript of Antoine’s state court proceeding during which the criminal charges were amended and he was referred to the Pretrial Intervention Program. Antoine, who was represented by counsel, did not oppose this motion. In a decision dated May 14, 2007, the District Court granted summary judgment in favor of the officers on Antoine’s Fourth Amendment and state law claims based on the doctrine set forth in Heck2 Antoine filed a motion for reconsideration.
On July 9, 2007, Antoine filed a notice of appeal, No. 07-3231. Within days, Officers Rucker, Aleman, and Stouch filed a third motion for summary judgment on the remaining selective enforcement and equal protection claims.
On April 1, 2008, the District Court issued its third opinion. The Court denied Antoine’s motion for reconsideration of the grant of summary judgment on the Fourth Amendment and state law claims, and granted summary judgment in favor of the officers on the remaining selective enforcement and equal protection claims. With regard to the motion for reconsideration, the District Court acknowledged Antoine’s argument that the transcript of the state court plea proceeding and certain mug shots had been fabricated by the officers. It refused to reinstate the Fourth Amendment and state law claims, however, noting that the transcript from Antoine’s state *391court proceeding was part of an exhibit that defense counsel had sworn was a true and accurate copy.
Although the April 1, 2008, decision and order constituted an appealable final order because it ended the litigation on the merits and left nothing for the District Court to do, see Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir.2009), Antoine did not file a notice of appeal. Instead, on May 1, 2008, Antoine filed a motion for reconsideration seeking relief under Federal Rule of Civil Procedure 60(b). In a thorough opinion dated July 15, 2008, 2008 WL 2783347, the District Court considered each of Rule 60(b)’s six grounds for relief and found Antoine’s invocation of them unavailing. Twenty-eight days later, on August 12, 2008, Antoine filed a second notice of appeal, No. 08-3462.
During the pendency of this second appeal, on May 6, 2009, this Court granted the officers’ motion to dismiss Antoine’s initial appeal, No. 07-3231, for lack of jurisdiction. We also explained that the initial notice of appeal was timely with regard to only two interlocutory orders,3 and that an appeal from these types of interlocutory orders did not qualify as a premature appeal that could ripen upon entry of final judgment. Antoine v. Rucker, No. 07-3231 (3d Cir. May 6, 2009) (citing Adapt of Phila. v. Phila. Hous. Auth., 433 F.3d 353, 365 (3d Cir.2006)). We noted that Antoine could have appealed from the District Court’s entry of final judgment in April of 2008, but that no such appeal had been filed.
Because Antoine’s May 1, 2008, motion for reconsideration was not filed within ten days of the District Court’s April 1, 2008, final judgment, the motion did not toll the time period for filing a notice of appeal from that judgment. Fed. R.App. P. 4(a)(4)(A)(vi). The second notice of appeal filed on August 12, 2008, however, was filed within thirty days of the District Court’s denial of the motion for reconsideration. Accordingly, we have jurisdiction under 28 U.S.C. § 1291 over the District Court’s denial of Antoine’s second motion for reconsideration.
“[A]n appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Browder v. Dir. Dep’t of Corrs., of Ill., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); see also Smith v. Evans, 853 F.2d 155, 158 n. 1 (3d Cir.1988) (noting that even though Rule 60(b) preserves the right to appeal, the appeal may bring up only the subject matter of the 60(b) motion and not the underlying case). As a consequence, even though Antoine’s brief argues that the District Court’s grant of summary judgment in favor of the officers was error, we lack jurisdiction to consider that issue. We confine our review to whether the District Court abused its discretion in denying Antoine’s motion for reconsideration under Rule 60(b). See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008) (reiterating that we “review grants or denials of relief under Rule 60(b), aside from those raised under Rule 60(b)(4), under an abuse of discretion standard”) (internal citation omitted).
Antoine’s opening brief completely fails to present any legal argument in support of his contention that the District Court erred by denying his motion for reconsideration. This is a sufficient ground for finding the claim waived. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (“An issue is waived unless a party raises it in its opening brief, and for those purposes ‘a passing reference to an issue ... will not suffice to *392bring that issue before this court’ ”); see also Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (observing that an appellant’s failure to present legal argument in support of an issue waives that issue on appeal and the court of appeals need not address it).
Nonetheless, we construe the reference in Antoine’s opening brief to “fraud ... in violation of Court Rule 60(b)” as a challenge to the District Court’s denial of his motion for reconsideration under Rule 60(b)(3) and (6). Under this rule, a court is permitted “to relieve a party from a final judgment” for “(3) fraud ... misrepresentation, or misconduct by an opposing party,” or “(6) any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(3) and (6). The District Court declined to grant Antoine relief, explaining that his charge that the Officers fabricated “the allocution transcript and mug shots” was unsupported by the evidence as explained during the summary judgment proceeding. In addition, the Court concluded that Antoine had failed to establish extraordinary circumstances warranting a grant of relief under Rule 60(b)(6). We find no error in the District Court’s denial of Antoine’s motion for reconsideration. Antoine has not adduced any evidence casting doubt on the authenticity of the state court transcript.
For the reasons set forth above, we will affirm the judgment of the District Court.4
. The District Court exercised federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343, as well as supplemental jurisdiction under 28 U.S.C. § 1367.
. The motion did not seek summary judgment on Antoine’s selective enforcement and equal protection claims, and these claims remained outstanding.
. Neither of the interlocutory orders was the order granting summary judgment on An-loine's Fourth Amendment and state law claims.
. Antoine's notice of appeal referred generally to the plaintiffs, which include his wife, Marie Horatius, and his daughter, Nelchael. At first glance, their appeals seem timely in light of Federal Rule of Appellate Procedure 3(c)(2), which provides that a “pro se notice of appeal is considered filed on behalf of the signer and the signer's spouse and minor children.” But Marie’s and Nelchael's claims became appeal-able with the entry of the District Court’s April 1, 2008, final order resolving Antoine's remaining claims. Because a notice of appeal was never filed within thirty days of that final order, Marie and Nelchael have waived their rights to appeal. As a result, we cannot review those claims in this appeal, which takes issue with the propriety of the District Court's denial of Antoine’s motion for reconsideration.
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OPINION OF THE COURT
PER CURIAM.
Matthew Tucker, who is involuntarily committed to Greystone Psychiatric Hospital, appeals pro se from the District Court’s order granting defendants’ motions for summary judgment. For the reasons that follow, we will affirm.
In November 2003, Tucker filed a complaint under 42 U.S.C. § 1983 alleging that his right of access to court was violated. Tucker’s complaint named the “Clerk of the Superior Court of N. Jersey, Morris-town, NJ” as a defendant, who was later identified as defendant Michael Arnold, Deputy Clerk of the Superior Court of New Jersey, Morris Vicinage. He argues that Arnold refused to process five civil complaints that Tucker claimed were sent to the Superior Court of New Jersey from September to November 2003. After amending his complaint, Tucker added as defendants Greystone employees Beverly Bailey, Danielle Barnave, and unknown in*410dividuals in the Greystone mail room. Tucker alleged that these defendants deliberately mishandled the mailing of his five complaints and thus denied him access to the courts in violation of his constitutional rights under § 1988, 42 U.S.C. § 1985, and state tort law.
All defendants moved for summary judgment, which the District Court granted. The court noted that Tucker has “not presented a scintilla of evidence” in support of his claims. The court also noted that Tucker’s allegations were insufficient to create an inference of negligence, let alone an intentional wrong, and that he failed to show that he sustained any actual injury. In fact, the court determined that two of the five complaints were received, filed, and adjudicated by the Superior Court. The court also determined that Tucker failed to show that he had no opportunity to litigate a meritorious claim, especially relying on the fact that Tucker could have re-submitted his complaints to correct the error, if any, that had occurred. The court also noted that defendants presented unrebutted evidence showing that Tucker had filed similar complaints in federal court, which disposed of his claims. The court denied Tucker all relief.
Tucker timely appealed. We have appellate jurisdiction to review the judgment and our review is plenary. See 28 U.S.C. § 1291; Atkinson v. LaFayette Coll., 460 F.3d 447, 452 (3d Cir.2006). Summary judgment will be affirmed if the record demonstrates that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To survive a motion for summary judgment, the non-moving party must present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005).
Like prisoners, individuals who are involuntarily committed to a mental institution have the right to access the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir.1995); Gibson v. Superintendent of N.J. Dep’t Law & Pub. Safety-Div., 411 F.3d 427, 441-42 (3d Cir.2005). However, due process does not protect prisoners from negligent governmental acts, nor is it designed to supplant traditional tort law. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986). Section 1983 claims also cannot be initiated based on negligent denials of access. Id.; see also Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir.1994). In addition, this Court has extended Daniels to hold that an official may be liable only if she acts “wrongfully and intentionally.” Gibson, 411 F.3d at 445. Other courts agree. See Pink v. Lester, 52 F.3d 73, 76 (4th Cir.1995) (relying on McDonald v. Smith, 472 U.S. 479, 482-83, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985), to find that negligent acts do not permit recovery under the First Amendment); Snyder v. Nolen, 380 F.3d 279, 291 n. 11 (7th Cir.2004).
The record reflects that Tucker provided no evidence to show that defendants Bailey and Barnave intentionally or deliberately prevented his complaints from being delivered to the Superior Court, or that defendant Arnold intentionally or deliberately refused to process or file his complaints. Tucker also admitted at his deposition that he did not have any personal knowledge or evidence to support these allegations. As appellees argue, at best, their conduct was negligent, which is insufficient to sustain a basis for liability on a denial of access claim under 42 U.S.C. § 1983. Tucker’s speculative beliefs that the defendants are either collectively or individually hable does not establish that *411any of these defendants intentionally denied him access to the court.
Even if Tucker had provided evidence of an intentional act, he fails to show that he sustained any actual injury. See Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (requiring a claimant to show actual injury by the alleged denial of access). In fact, two of the five complaints were disposed of by the Superi- or Courts. Additionally, defendants show, and Tucker does not refute, that he pursued identical claims in several federal liti-gations pending during the same time period. Even more striking, Tucker admitted at deposition that he could have simply resent the complaints to the Superior Court. Instead, he filed the current lawsuit, in addition to other similar lawsuits.1 Thus, he fails to show that he had no other opportunity to seek relief for these claims. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (relief should be provided when a plaintiff loses the opportunity to sue or opportunity to seek some particular order of relief); Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir.1997) (defendants’ actions resulted in the “loss or rejection of a legal claim.”).
Finally, because Tucker failed to prove any evidence of conspiracy, let alone any evidence that defendants acted with a discriminatory animus, he fails to sustain a claim of conspiracy under 42 U.S.C. § 1985 against defendants Barnave and Bailey.2
Accordingly, based on the record and Tucker’s lack of any evidence to overcome summary judgment, we will affirm the District Court’s order.
. See Matthew Tucker v. Collins I’Jama, et al., No. 04-277, 2009 WL 1617947 (D.N.J. June 9, 2009) (nearly identical action against the Deputy Clerk of the Essex Vicinage of the Superior Court of New Jersey, as well as defendants Bailey and Barnave, for negligently mishandling his mail).
. We decline to address any of Tucker’s remaining claims because he does not provide evidence to support these allegations. We also do not need to address appellees’ remaining arguments because the record demonstrates that Tucker failed to provide any evidence to overcome the District Court's grant of summary judgment.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Audrey Barzanty brought two claims against her employer, Verizon Pennsylvania, Inc., under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VTI”), alleging gender discrimination and a hostile work environment. The District Court granted Verizon’s motion for summary judgment, dismissing both claims. Bar-zanty appeals only the District Court’s dismissal of her hostile work environment claim for failure to exhaust administrative remedies. We will affirm.
I.
Barzanty was employed by Verizon as a splicing technician from 1986 until her employment was terminated on December 21, 2004.1 She was discharged for multiple violations of the Verizon Code of Business Conduct, including (1) seeking reimbursement for hours she did not work; (2) leaving her work site without permission; and (3) using a company truck for personal shopping.
On September 19, 2005, Barzanty submitted a General Intake Questionnaire to the Pittsburgh office of the Equal Employment Opportunity Commission (“EEOC”). On the questionnaire, she checked off “discharge” and “harassment” as the bases of her alleged discrimination. On November 16, 2005, she filed a Form 5 Charge of Discrimination, alleging gender discrimination arising only out of Verizon’s decision to terminate her employment. She claimed she was discriminated against because males who engaged in similar infractions were not discharged. On March 30, 2006, the EEOC issued a right-to-sue letter finding no cause.
*413Barzanty subsequently filed a two-count complaint under Title VII in the United States District Court for the Western District of Pennsylvania, alleging Verizon and her supervisor, Allen Nemetz, subjected her to a hostile work environment, and Verizon discharged her on the basis of gender.2 After discovery, Verizon filed a motion for summary judgment, contending (1) Barzanty’s claim was time barred because she failed to file her EEOC charge within 300 days of her termination; (2) she did not exhaust her administrative remedies because the EEOC charge did not mention a hostile work environment; and (3) she could not state a prima facie case of gender discrimination with respect to her discharge.
On November 5, 2007, Magistrate Judge Robert C. Mitchell recommended the summary judgment motion be granted based on Verizon’s second and third arguments. The Magistrate Judge provided the following explanation as to why it recommended that the District Court dismiss Barzanty’s hostile work environment claim:
The Form 5 Charge of Discrimination identified the December 21, 2004 discharge as the only issue Plaintiff wanted to bring to the agency’s attention. Plaintiff did not check the box indicating that it was a continuing action and the text makes no mention of a hostile work environment. Since this is the document that was forwarded to Verizon for a response, it would be prejudicial to the employer to compel it to respond to claims not contained therein.
Report and Recommendation at 23 (internal citation omitted). Barzanty then filed an Objection to the Magistrate Judge’s report, contending Verizon had waived its ability to object to her hostile work environment claim. The District Court issued a Memorandum Order on December 6, 2007, adopting in full the Magistrate Judge’s recommendations.
Barzanty filed a timely Notice of Appeal, alleging only that the District Court erred in dismissing her hostile work environment claim for failure to exhaust administrative remedies. This appeal follows.3
II.
A.
Barzanty contends she exhausted her administrative remedies before filing this suit. A plaintiff bringing an employment discrimination claim under Title VII must comply with the procedural requirements set forth in 42 U.S.C. § 2000e-5. Before filing a lawsuit, a plaintiff must exhaust her administrative remedies by filing a timely discrimination charge with the EEOC. Id. §§ 2000e-5(b), (e)(1), (f)(1). The EEOC will then investigate the charge, and the plaintiff must wait until the EEOC issues a right-to-sue letter before she can initiate a private action. Burgh v. Borough Council, 251 F.3d 465, 470 (3d Cir.2001). The ensuing suit is *414limited to claims that are within the scope of the initial administrative charge. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir.1996). “The purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court.” Id
After a charge is filed, “the scope of a resulting private civil action in the district court is ‘defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination ....’” Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir.1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976)); see also Antol, 82 F.3d at 1295; Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984). Although this standard does not necessarily preclude a plaintiff from asserting a claim for the mere failure to check a box on an EEOC Charge Form, it does prevent a plaintiff from “greatly expanding] an investigation simply by alleging new and different facts when [s]he [is] contacted by the Commission following [her] charge.” Hicks, 572 F.2d at 967. Because the EEOC is required to serve notice on the employer against whom the charges are made, this standard also allows an employer to be put on notice of the claims likely to be filed against it. See 42 U.S.C. §§ 2000e-5(b), (e)(1).
Interpreting Barzanty’s EEOC charge liberally, her hostile work environment claim was still not within the scope of the charge. In Anjelino v. New York Times Co., 200 F.3d 73, 94-95 (3d Cir.1999), we held a hostile work environment claim was within the scope of an initial EEOC charge because it alleged the plaintiff was subjected to an “abusive atmosphere,” a phrase which is interchangeable with “hostile work environment.” But there is no analogous language in Barzanty’s EEOC charge which could give rise to a hostile work environment claim. The Form 5 Charge of Discrimination identified only an allegation of gender discrimination relating to Barzanty’s discharge on December 21, 2004. Barzanty provided no facts that suggest a hostile work environment, and she did not check the box indicating her charge was a “continuing action.”
Barzanty cites Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir.1984), to support her argument. In Howze, we held that the plaintiff could amend her complaint to include a retaliation claim. Id at 1212. Her initial EEOC charge alleged only race discrimination based on her employer’s failure to promote her to a position for which she was qualified. Id at 1210. Because a reasonable investigation by the EEOC would have encompassed a retaliation charge, we allowed the plaintiff leave to amend. Id at 1212. The discrimination and retaliation claims were alternative allegations regarding the employer’s failure to promote the plaintiff, and the facts supporting the former allegation were the same as those supporting the latter. Id Here, however, Barzanty’s two claims related to separate occurrences. Although her former supervisor, Mr. Nemetz, was allegedly involved in both incidents, the gender discrimination claim involved the discrete act of Verizon’s termination of Barzanty’s employment, while the hostile work environment allegation involved continuing occurrences unrelated to her discharge.4 Accordingly, Howze does not support Barzanty’s appeal.
*415As additional support for Barzanty’s argument that she exhausted her administrative remedies, she attempts to use her answers to the EEOC Intake Questionnaire in which she alleged a “hostile work situation.” This she cannot do. The EEOC Charge Form and the Intake Questionnaire serve different purposes. An Intake Questionnaire facilitates “pre-charge filing counseling” and allows the Commission to determine whether it has jurisdiction to pursue a charge. Federal Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147, 1159, 170 L.Ed.2d 10 (2008).5 Moreover, the Intake Questionnaire is not shared with the employer during the pen-dency of the EEOC investigation. On the other hand, an EEOC Charge Form serves to define the scope of the Commission’s investigation and to notify the defendant of the charges against it. See 42 U.S.C. § 2000e-5(b) (requiring the Commission to serve notice of the charge on the employer against whom it is made within ten days, and to conduct an investigation); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359-60, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (stating the same). A plaintiff cannot be allowed to transfer the allegations mentioned only in the questionnaire to the charge itself. Not only would this be circumventing the role of the Commission, but it would be prejudicial to the employer.6 See, e.g., Park v. Howard Univ., 71 F.3d 904, 909 (D.C.Cir.1995) (“To treat Intake Questionnaires willy-nilly as charges would be to dispense with the requirement of notification of the prospective defendant ....” (quoting Early v. Bankers Life and Cas. Co., 959 F.2d 75, 80 (7th Cir.1992))); Binder v. PPL Servs. Corp., No. 06-CV-2977, 2009 WL 3738569, at *6 (E.D.Pa. Nov.5, 2009); Rajoppe v. GMAC Corp. Holding Corp., No. 05-2097, 2007 WL 846671, at *7 (E.D.Pa. Mar.19, 2007); Johnson v. Chase Home Fin., 309 F.Supp.2d 667, 672 (E.D.Pa.2004).
For these reasons, Barzanty’s hostile work environment claim is outside the scope of her charge of discrimination.
B.
Barzanty also argues Verizon waived its administrative exhaustion defense to her hostile work environment claim because it failed to file a motion to dismiss under Federal Rule of Civil Procedure 12(b). A party waives a defense only if it fails to raise it by motion and does not include it in a responsive pleading. Fed. R.Civ.P. 12(h). Verizon properly asserted an affirmative defense for Barzanty’s failure to comply with the statutory prerequi*416sites of her action. Following the close of discovery, Verizon moved for summary judgment on this basis, which the District Court subsequently granted. Accordingly, Verizon did not waive its objection for failure to exhaust administrative remedies.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The Magistrate Judge’s Report and Recommendation stated Barzanty was employed by Verizon from 1974 to 1981, and from 1993 to her discharge. We use the dates in Barzanty's EEOC Charge of Discrimination Form.
. She also filed a grievance through her union, claiming her discharge violated the parties' collective bargaining agreement. This issue went to arbitration, and the arbitrator reduced the discharge to a six-month suspension. Barzanty was reinstated as an employee of Verizon with back pay in August 2007.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision granting summary judgment. See Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir.2009). 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). In making this determination, we consider the evidence in a light most favorable to the non-moving party. Prowel, 579 F.3d at 286.
. Multiple cases applying Howze have made this distinction. See, e.g., Valdes v. New Jersey, No. Civ. 05-3510(GEB), 2005 WL 3447618, at *4 (D.NJ. Dec.15, 2005) (dismissing a hostile work environment claim because the EEOC charge alleged only retaliation and the claims were not "reasonably related”); Smith-Cook v. Nat'l R.R. Passenger Corp. (AMTRAK), No. 05-00880, 2005 WL 3021101, at *4 (E.D.Pa. Nov.10, 2005) (dismissing claims *415of retaliation and an ongoing policy of discrimination because plaintiff's charge referred only to "discrete, isolated incidents of discrimination ... as opposed to allegations of a company wide practice of discrimination"); Pad v. Rollins Leasing Corp., No. 96-295-SLR, 1997 WL 811553, at *6 (D.Del. Dec. 18, 1997) (allowing the plaintiff's gender discrimination claim to proceed because the facts supporting his “charge of retaliation are the same as those supporting the complaint's claim of gender discrimination”).
. Although the questionnaire in Holowecki was different from Barzanty's questionnaire, the general purpose for using each one was the same.
. Barzanty argues that because Verizon requested her EEOC file, including the Intake Questionnaire, denied the allegations of a hostile work environment in its answer, and questioned her during her deposition on the allegations of a hostile work environment, Verizon would not be prejudiced by allowing her to proceed on this claim. Although Verizon may not be unduly prejudiced in this case, Barzanty still cannot circumvent the aforementioned administrative exhaustion requirements. See Anjelino, 200 F.3d at 93 ("The preliminary step of the filing of the EEOC charge and the receipt of the right to sue notification are 'essential parts of the statutory plan (quoting Ostapowicz, 541 F.2d at 398)).
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PER CURIAM.
Jose Gonzalez-Rivera, a federal prisoner, appeals an order of the United States *420District Court for the Middle District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241. We will affirm.
Following a jury trial, Gonzalez-Rivera was convicted in the United States District Court for the Eastern District of Pennsylvania of conspiracy to distribute in excess of five kilograms of cocaine and related charges. In April 1993, he was sentenced to life imprisonment and ordered to pay a special assessment of $250. See United States v. Quintero, 38 F.3d 1317, 1320 n. 1 (3d Cir.1994). We upheld Gonzalez-Rivera’s conviction, but remanded for resen-tencing. Id. at 1335, 1348. On November 7, 2000, the District Court resentenced Gonzalez-Rivera to 36 years imprisonment and imposed five years of supervised release, a special assessment of $50, and a fine of $750. Gonzalez-Rivera appealed again and we affirmed the sentence and conviction. See United States v. Gonzalez-Rivera, 29 Fed.Appx. 848 (3d Cir.2002) (nonprecedential). His efforts to obtain post-conviction relief have been unsuccessful.
In July 2009, Gonzalez-Rivera filed a § 2241 petition in the Middle District, alleging that the Bureau of Prisons (“BOP”) improperly withdrew money from his inmate account to pay the fine that was imposed as part of his criminal sentence. He also argued that the sentencing court failed to consider the factors set forth in 18 U.S.C. § 3553(a) and that the Sentencing Guidelines “do not take into account all of the considerations that are now relevant to the ... sentencing decision.” The District Court dismissed the petition, concluding that the BOP had authority to set a payment schedule for criminal fines and that Gonzalezr-Rivera could not challenge his conviction under § 2241. Gonzalez-Rivera filed a timely motion for reconsideration, which the District Court denied. This appeal followed.
Gonzalez-Rivera challenges the execution of his sentence by asserting that the BOP “exceeded its authority” in establishing a payment schedule for the fine imposed by the District Court. See 18 U.S.C. § 3572(d). This claim falls within the purview of a § 2241 petition. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001); Matheny v. Morrison, 307 F.3d 709, 712 (8th Cir.2002) (stating that inmates’ challenges to payment schedules set by BOP “concern the execution of sentence, and are therefore correctly framed as § 2241 claims”). We have jurisdiction pursuant to 28 U.S.C. § 1291.
In support of his claim, Gonzalez-Rivera relied on United States v. Corley, 500 F.3d 210, 226-27 (3d Cir.2007), where we held that, under the Mandatory Victims Restitution Act (“MVRA”), a sentencing court impermissibly delegates its authority when it orders immediate payment of restitution with knowledge that the defendant is financially unable to make payment immediately.1 Corley is distinguishable, however, because Gonzalez-Rivera is challenging a fine, not a restitution order.
The MVRA, which was applicable when Gonzalez-Rivera was resentenced in 2000, provides that “[a] person sentenced to pay a fine or other monetary penalty, including restitution, shall make such payment immediately, unless ... the court provides for payment on a date certain or in installments.” 18 U.S.C. § 3572(d)(1).2 With *421restitution, the MVRA also mandates that the sentencing order include a payment schedule in consideration of the defendant’s economic circumstances. See 18 U.S.C. § 3664(f)(2). Importantly, there is no analogous requirement for the imposition of fines. According to Gonzalez-Rivera’s § 2241 petition, the court at resen-tencing found that “the defendant has the wherewithal to earn [the $750 fine] in prison work programs, and that [it] is payable immediately.” The sentencing court’s order for immediate payment of the fine was permissible.3 See United States v. Ellis, 522 F.3d 737, 738-39 (7th Cir.2008) (holding that sentencing court did not improperly delegate its authority when it ordered that fine “[p]ayments are due immediately, ... but may be paid from prison earnings in compliance with the Inmate Financial Responsibility Program.”).
For the foregoing reasons, we will affirm the judgment of the District Court.
. Subsequently, a petition for writ of certiora-ri was granted and the Supreme Court vacated the judgment on a ground unrelated to the improper delegation issue. See Corley v. United States, — U.S. —, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009).
. We recognize that Gonzalez-Rivera's offenses pre-date the MVRA. In United States v. *421Edwards, 162 F.3d 87, 91 (3d Cir.1998), we held that retroactive imposition of restitution under the MVRA violated the Ex Post Facto Clause. No Ex Post Facto violation occurred here, however, because the enactment of § 3572(d)(1) did not increase the punishment for Gonzalez-Rivera's crime.
. We also agree with the District Court that Gonzalez-Rivera’s sentencing claims are not cognizable in a § 2241 petition. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002); In re Dorsainvil, 119 F.3d 245, 250 (3d Cir.1997).
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OPINION OF THE COURT
SCIRICA, Chief Judge.
In this appeal, Thom Lewis challenges the District Court’s judgment dismissing his complaint as barred by res judicata. We will affirm.
A brief procedural history of an earlier lawsuit filed by Lewis is germane to the issue in this appeal. Lewis was the President and Chief Executive Officer of Collie Rescue of Central Pennsylvania Inc., a non-profit organization. In March 2007, Lewis filed a civil rights action under 42 U.S.C. § 1983 against several employees of the Commonwealth of Pennsylvania1 as well as several private citizens,2 Lewis v. Smith et al., No. 07-cv-512 (M.D.Pa.) (Muir, J.) {“Lewis I ”). Later that month, Lewis filed an amended complaint alleging that defendants were involved in the illegal *423transportation and sale of dogs in Pennsylvania and had harassed him and retaliated against him.
On July 10, 2007, Judge Muir granted defendant Curcillo’s motion under Fed. R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. Later that month, the court granted in part the Commonwealth defendants’ Rule 12(b)(6) motion, dismissing all claims against all Commonwealth defendants except Deb Smith. On August 13, 2007, defendants Dan Flah-erty and Frank Sterner filed a Rule 12(b)(6) motion to dismiss. Lewis did not file a brief in opposition. Instead, on September 3, 2007, Lewis filed a second amended complaint. On September 5, 2007, Judge Muir entered an order striking the second amended complaint under Fed.R.Civ.P. 15(a) because Lewis had not obtained prior authorization from the court or written consent of the parties to file it. The September 5, 2007 order also granted Lewis an additional 20 days to file a brief in opposition to the pending motion to dismiss. On October 18, 2007, after Lewis had filed his opposition brief, Judge Muir granted Flaherty and Sterner’s motion to dismiss, thus leaving Commonwealth employee Deb Smith as the only remaining defendant in Lewis I.3 Lewis never appealed the court’s orders granting defendants’ motions to dismiss.
On November 2, 2007, two weeks after Judge Muir granted Flaherty and Sterner’s motion to dismiss, Lewis filed the present action, Lewis v. Smith et al., No. 07-cv-2011 (M.D.Pa.) (Jones, J.) (“Lewis II”), another § 1983 civil rights complaint. Lewis named as defendants Jesse Smith, Mary Bender, Rick Burd, John Breiner, Dan Flaherty, and Frank Sterner, all of whom were defendants in Lewis I. In his second suit, Lewis made the same general allegations regarding defendants’ involvement in the illegal transportation and sale of dogs in Pennsylvania and their retaliation against him. On August 7, 2008, Judge Jones granted defendants’ Rule 12(b)(6) motions and dismissed the complaint with prejudice, holding the action was barred by res judicata. We agree.4
“The doctrine of res judicata ‘protects litigants from the burden of relit-igating an identical issue with the same party or his privy and promotes judicial economy by preventing needless litigation.’ ” Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir.2007), abrogated in part, on other grounds, by Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230, 233-34 (3d Cir.2009) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). Three elements are required for the doctrine to take effect: (1) a final judgment on the merits must have been rendered in a prior suit; (2) the same parties or their privies must have been involved in both suits; and (3) the subsequent suit must have been based on the same cause of action as the original. Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.1991). Each element is met in this case. First, dismissal for failure to state a claim *424under Rule 12(b)(6) is a final judgment on the merits for res judicata purposes. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Post, 501 F.3d at 169. Second, Lewis is the plaintiff in both Lewis I and Lewis II, and all of the defendants in Lewis II were also defendants in Lewis I. Finally, the same civil rights causes of action arising out of Lewis’s allegations of dog trafficking are at issue in both cases.5
Lewis contends, however, that res judicata should not apply because of various errors allegedly committed by the Lewis I court. Specifically, Lewis contends the Lewis I court erred by striking the second amended complaint under Rule 15(a), by failing to sua sponte grant him leave to amend his complaint, and by staying discovery while motions to dismiss were pending. But these arguments should have been raised in a timely appeal. They do not render the Lewis I court’s Rule 12(b)(6) judgments “anything other than a final judgment on the merits.” Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 172 (3d Cir.2004). We are highly skeptical of Lewis’s claims of error, but we need not reach those issues. The United States Supreme Court has rejected the argument that res judicata does not apply when there has been error by the court in the previous action. See Moitie, 452 U.S. at 398, 101 S.Ct. 2424 (“[T]he res judicata consequences of a final, unap-pealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.”). If Lewis disagreed with the Lewis I court’s rulings, he should have moved for reconsideration or filed an appeal rather than file a second action.6
For the foregoing reasons, we will affirm the judgment of the District Court.
. The Commonwealth defendants were Jesse Smith, Mary Bender, Rick Burd and John Breiner (employees of the Pennsylvania Department of Agriculture, Bureau of Dog Law Enforcement); Deb Smith (an employee of the Pennsylvania Department of State); and Ron Hill, Mark Foerster, and John Downing (attorneys employed by the Pennsylvania Office of Attorney General's Charitable Trusts Section).
. The private citizen defendants were Dan Flaherty, Frank Sterner, and Joseph Curcillo.
. The court granted Smith’s motion for summary judgment on July 29, 2008 and entered judgment in favor of Smith and against Lewis on August 4, 2008.
. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. The court granted defendants' motions to dismiss under Fed.R.Civ.P. 12(b)(6). Thus, we accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them. Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 962 (3d Cir.1991). A district court’s application of the doctrine of res judicata is a question of law over which we exercise plenary review. See Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 248 (3d Cir.2006).
. Lewis admits the two cases are based on the same legal theories, but he contends there were factual differences between the complaints in Lewis I and Lewis II. The addition of some new facts to support his legal theories does not prevent preclusion in this case. Because the term "cause of action” cannot be precisely defined, we look to the "essential similarity of the underlying events giving rise to the various legal claims.” Davis v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir.1982) (en banc). In this regard, we focus on "(1) whether the acts complained of and the demand for relief are the same ...; (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4) whether the material facts alleged are the same.” United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d Cir.1984) (citations omitted); see also Lubrizol Corp., 929 F.2d at 963. Focusing on these factors in light of the "essential similarity of the underlying events giving rise” to Lewis's legal claims, we find the judgment in Lewis I precludes Lewis from maintaining Lewis II.
. Lewis also challenges the District Court’s December 1, 2008 order granting Flaherty and Sterner's joint motion for an extension of time to file an application for counsel fees under 28 U.S.C. § 1927 and 42 U.S.C. § 1988. We do not have jurisdiction to determine an unresolved issue of attorney’s fees and thus will dismiss the appeal to the extent it challenges the December 1, 2008 order. See Am. Soc'y for Testing & Materials v. Corrpro Cos., 478 F.3d 557, 580 (3d Cir.2007).
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*426OPINION OF THE COURT
SCIRICA, Chief Judge.
Appellant Kevin Mayfield was tried by a jury on charges of transporting minors with intent to engage in prostitution, in violation of 18 U.S.C. § 2423(a); conspiring to transport minors with intent to engage in prostitution, in violation of 18 U.S.C. § 2423(e); and advertising child pornography, in violation of 18 U.S.C. § 2252A(a)(3)(B).
At trial, the government presented evidence that Mayfield and his associate, Cas-san Coward, drove J.B. and A.B.1 — sisters who were 16 and 14 years old, respectively — from Pennsylvania to New Jersey. Mayfield rented a room at a motel in New Jersey, and took pictures of J.B. posing nude. The next day, Mayfield took J.B. to a different motel in New Jersey. On that day, an advertisement titled “Vanilla Treat — w4m—21” was posted to the Craig-slist website from an internet protocol (“IP”) address registered to Mayfield’s father. The advertisement contained a nude, sexually explicit photograph of J.B., along with a phone number for a cell phone that Mayfield had given her when they arrived in New Jersey. Thereafter, J.B.’s phone rang several times, and May-field told her “to charge $150 for a half hour, $175 for an hour.” J.B. testified she did not answer the calls and eventually told Mayfield she wanted him to take her home. He initially refused because she “didn’t make money” by “having sex,” but later took her to Philadelphia, Pennsylvania.
A.B. testified that Coward rented a room at another motel and asked A.B. to be photographed and appear on Craigslist for prostitution. A.B. agreed and Coward took nude pictures of her with a digital camera and uploaded them to a laptop computer. On the same day, an advertisement titled “College Cute — w4m—18” was posted to Craigslist. The advertisement contained nude pictures of A.B. along with a phone number for the cell phone Coward purchased for A.B. She received five or six calls on it, two or three of which she answered. A.B. met and had oral sex with two of the individuals who called and charged each one $200, based on the instructions from Coward. She was eventually arrested by undercover detectives who had accessed the Craigslist advertisement.
A jury found Mayfield guilty on all three charges. The District Court sentenced Mayfield to three concurrent terms of 200 months imprisonment, required Mayfield to serve a life-term of supervised release, and imposed a $500 fine. Mayfield appeals the convictions, arguing the District Court erred in (1) denying his motion to dismiss based on pre-indictment and pre-trial delays in violation of the Speedy Trial Act, 18 U.S.C. §§ 3161(b), 3161(c)(1); and (2) denying his motion to suppress statements he made at two pre-trial proffer sessions. We will affirm.2
I.
The Speedy Trial Act limits pre-indictment delay by requiring “[a]ny information or indictment charging an individual with the commission of an offense [to] be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). The Act also limits pre-trial delay by requiring “the trial of a defendant charged [to] commence within seventy days from the filing date ... of the information or indictment,” or *427from the date of first appearance in court, “whichever date last occurs.” 18 U.S.C. § 3161(c)(1). If the time limitations of the Act are not satisfied, the charges must be dismissed. 18 U.S.C. § 3162(a).
Certain enumerated types of delays are “excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence.” 18 U.S.C. § 3161(h).3 Specifically, any period of delay “resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion” is excluded from calculating pre-indictment and pre-trial periods. 18 U.S.C. § 3161(h)(1)(D). The Act also excludes “[a]ny period of delay resulting from a continuance granted by any judge ... at the request of the defendant or his counsel ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Such “ends of justice” continuances require that the “court set[] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” Id.
A.
Mayfield argues that pre-indictment delay violated his statutory right to a speedy trial. He was arrested on July 10, 2007, pursuant to a federal criminal complaint charging him under 18 U.S.C. § 2423(e) with conspiracy to transport minors in interstate commerce with the intent that they engage in prostitution. On October 9, 2007, a grand jury returned a three-count indictment against Mayfield, charging the same conspiracy offense alleged in the criminal complaint, as well as an underlying substantive violation of 18 U.S.C. § 2423(a), and pandering or advertising of child pornography, in violation of 18 U.S.C. § 2252A(a)(3)(B). Mayfield contends the passage of approximately 90 days between his arrest and the indictment violated his rights under the Speedy Trial Act, 18 U.S.C. § 3161(b).
On July 10, 2007, Mayfield was brought before a magistrate judge for the initial appearance. The court appointed him counsel, Troy Archie, Esq. Mayfield then waived his right to a preliminary hearing. On July 24, 2007, Archie, on May-field’s behalf, consented to continue the time for filing an indictment or information under the Speedy Trial Act for sixty days to allow for review of informal discovery for the purpose of entering plea negotiations. Accordingly, the court issued an “ends of justice” continuance order excluding the time from August 9, 2007 through October 9, 2007 under the Speedy Trial Act. Because the continuance order was entered within the 30-day statutory period, and the remainder of the pre-in-dictment time was excluded by the order under § 3161(h)(7)(A), the indictment complied with the Act.
Nevertheless, Mayfield later moved to dismiss the indictment, arguing that he did not authorize his attorney to request or consent to a continuance. The District Court denied the motion.4 It did not *428abuse its discretion in doing so because the statute explicitly allows for a continuance “at the request of the defendant or his counsel.” 18 U.S.C. § 3161(h)(7)(A) (emphasis added). Archie, Mayfield’s appointed counsel, requested a continuance and consented to the continuance order in writing. While Mayfield contends Archie was not his counsel beyond the initial appearance, the record supports the District Court’s factual finding that Archie was Mayfield’s attorney at the time the continuance order was entered. At Mayfield’s initial appearance, the court appointed Archie “to represent [Mayfield] until further order of the Court.” The court instructed Mayfield that if he retains his own counsel, “that counsel should contact Mr. Archie and then Mr. Archie will let the Court know or [the] new counsel will let the Court know.” No new counsel was substituted until Mayfield hired a private lawyer, Mark S. Greenberg, Esq., in September 2007. Moreover, contrary to Mayfield’s assertions, the record indicates he believed Archie was still acting as his defense attorney at the time the continuance order was entered — e.g., on July 30, 2007, Mayfield sent a letter to Archie inquiring about the status of his case. In sum, Mayfield cannot validly complain his statutory speedy trial rights were violated when his counsel requested and consented to the continuance order. See United States v. Fields, 39 F.3d 439, 443 (3d Cir.1994) (noting that arguments for dismissal “based on continuances that [defendant’s] own attorney sought” are disturbing); United States v. Lattany, 982 F.2d 866, 883 (3d Cir.1992) (“Defendants cannot be wholly free to abuse the system by requesting [ (h)(7) ] continuances and then argue that their convictions should be vacated because the continuances they acquiesced in were granted.”).
B.
Mayfield next argues his statutory right to a speedy trial was violated by pretrial delay. On November 1, 2007 — 23 days after the indictment was returned— the District Court, at Mayfield’s request, entered an “ends of justice” continuance extending the deadline for filing pretrial motions until January 18, 2008, to allow Mayfield additional time to review discovery and prepare pre-trial motions. The continuance order excluded time from November 1, 2007, through January 18, 2008, for purposes of the Speedy Trial Act. Mayfield filed a number of pre-trial motions, the last of which the court decided on April 11, 2008. On May 7, 2008 — 26 days after the last motion was decided— the District Court held a status conference for the purpose of setting a trial date. At the conference, Mayfield’s counsel at the time, Mark S. Greenberg, Esq., informed the court that Mayfield had become dissatisfied with his representation and might not be prepared to proceed to trial within a week. The court granted Mayfield’s request to dismiss Greenberg and ordered the parties to appear for another status conference on June 2, 2008. Later the same day, the court appointed Mark W. Catanzaro, Esq. to represent Mayfield. On June 3, 2008, a day after the second status conference, the court, at Mayfield’s *429request, entered an “ends of justice” continuance order, extending the time for filing any additional pretrial motions until July 7, 2008 to allow Mayfield additional time for discovery, research, pre-trial motions and evidentiary hearing regarding the use of his proffer statements at trial. The order excluded the period from June 2 through September 22, 2008.
On August 22, 2008, Mayfield filed a motion to dismiss the indictment with prejudice, arguing his statutory right to a speedy trial was violated because more than 70 days elapsed from filing of the indictment — 23 days between October 9 and November 1, 2007 (the period from filing of the indictment to the first continuance order) and 52 days between April 12 and June 2, 2008 (the period from disposition of the last motion to filing of the second continuance order).5 On September 10, 2008, the District Court denied the motion, finding that Mayfield’s request for new counsel on May 7, 2008, constituted a request for a continuance that justified exclusion of time between May 7 and June 2 in the interests of justice. The court then entered a formal order confirming it had granted an “ends of justice” continuance on May 7, 2008. Mayfield now argues that the September 10, 2008 order was an improper after-the-fact justification of the May 7 continuance.
The Speedy Trial Act requires the court granting an “ends of justice” continuance to “set[ ] forth, in the record of the ease, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). If the reasons are not placed on the record, the time is not ex-cludable. United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982); United States v. Carrasquillo, 667 F.2d 382, 385-88 (3d Cir.1981). Although the Act requires the “court to decide to grant a continuance before the period begins to run, it does not require the court to put its reasons on the record at that time.” United States v. Rivera Constr. Co., 863 F.2d 293, 297 (3d Cir.1988). “A subsequent articulation satisfies the purpose of the statute.” Id.
In this case, the record reflects the District Court’s decision to grant an “ends of justice” continuance on May 7, 2008. In response to Mayfield’s request to dismiss Greenberg, the court explained: “[N]ow you’re going to have a new attorney assigned to you to represent you, that new attorney is going to take time and is going to need time to get up to speed on your case. And that all takes time, which will toll the Speedy Trial clock. And I want to make sure you understand that.” May-field confirmed his understanding and agreed to the delay. The court then discussed the new date for a status conference with the Assistant U.S. Attorney, who suggested a June date because “[Defendant] doesn’t have an attorney ...; the clock isn’t running, he is not prepared, he the defendant is not prepared to go to trial, he does not have a lawyer.” The court agreed and scheduled a status conference for June 2, 2008.
Accordingly, the record demonstrates that on May 7 the court granted a continuance and articulated the reason for it — to accommodate Mayfield’s request to change lawyers. The District Court correctly held that Mayfield’s subsequent motion to dismiss the indictment on speedy trial grounds lacked merit. Although the court did not enter a formal order on May 7, the reasons for the continuance were on the record. Moreover, “[a] subsequent articu*430lation” of the reasons for the continuance in the formal order entered on September 10, 2008, “satisfies the purpose of the statute.” Rivera Constr. Co., 868 F.2d at 297. Accordingly, the September 10, 2008 order did not constitute an after-the-fact justification.6
II.
Mayfield also contends the District Court erred in denying his motion to suppress the statements he made in two proffer statements. On October 11, 2007, Mayfield sent letters to the prosecutor and his attorney expressing his desire to cooperate with the Government. His attorney at the time, Greenberg, arranged a proffer session with the Government. Before the interview, the prosecutor provided May-field with a written agreement, outlining the terms and conditions for the proffer session. Greenberg discussed these parameters with Mayfield. At the beginning of the proffer session, the prosecutor discussed how the statements made during the interview could be used at trial. The agreement stated that the Government would be able to make derivative use of Mayfield’s statements and introduce them at trial for impeachment purposes.7 Both Mayfield and his counsel signed the agreement. On the following day, Greenberg sent a copy of the executed agreement to Mayfield.
During the first interview, on October 29, 2007, Mayfield made admissions involving his role in the charged offenses, including taking the victim to New Jersey for purposes of prostitution. On November 19, 2007, he appeared for a second proffer session, at which he made additional admissions and provided more information.
After discharging Greenberg, Mayfield moved to suppress the statements he had made to the Government during the proffer sessions. He alleged that Greenberg coerced him into signing the proffer agreement, never went over its terms, and did not explain that the statements made during the proffer sessions could be introduced as impeachment evidence. The District Court conducted an evidentiary hearing and denied the motion. The court found that Mayfield signed the agreement knowingly and voluntarily after having the agreement explained to him by his own lawyer and by the prosecutor. The court also found it significant that Mayfield returned for a second proffer session after receiving a copy of the fully executed agreement from his attorney. Mayfield now argues that his waiver was invalid because it was not knowing, voluntary and intelligent.8
*431“[A]ny statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty” are not admissible against the defendant who “was a participant in the plea discussions.” Fed.R.Evid. 410; see also Fed.R.Crim.P. 11(f) (providing that the admissibility of any plea, plea discussion, or any related statement is governed by Rule 410). But a defendant may waive the protections afforded by the rule, so long as the waiver is knowing and voluntary. United States v. Mezzanatto, 513 U.S. 196, 210, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995); United States v. Hardwick, 544 F.3d 565, 569-70 (3d Cir. 2008), cert. denied, — U.S. —, 129 S.Ct. 1386, 173 L.Ed.2d 638 (2009). The Government bears the burden of showing, by a preponderance of the evidence, that the waiver was voluntary and knowing. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). “The inquiry has two components. First, the waiver must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir.1989) (internal quotation marks omitted).
The record demonstrates Mayfield waived the protections of Rule 410 knowingly and voluntarily. The proffer sessions were arranged at his request— nothing in the record supports Mayfield’s contention that he was intimidated, coerced or deceived. The proffer agreement was provided to Mayfield in advance and explained by his own attorney and the prosecutor. Mayfield signed the agreement. Notably, after receiving a copy of the executed agreement, Mayfield appeared for a second interview and provided additional information. The terms of the agreement unambiguously provided for use of Mayfield’s statements on cross-examination and “to rebut any evidence or arguments offered on [his] behalf.” Accordingly, the District Court did not err in denying Mayfield’s motion to suppress the statements made during the two interviews based on its finding that Mayfield knowingly, voluntarily and intelligently waived the protections of Rule 410.9
III.
For the reasons discussed, Mayfield’s convictions will be affirmed.
. Because the victims were minors, we refer to them by their initials.
. The District Court had subject-matter jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction over the challenges to the conviction under 28 U.S.C. § 1291.
. The Judicial Administration and Technical Amendments Act of 2008, Pub.L. 110-406, 122 Stat. 4291, 4294, renumbered subparts of § 3161(h) by deleting obsolete cross-references to the Narcotic Addict Rehabilitation Act. None of the provisions at issue in this case were otherwise altered. In this opinion, we provide the new citations.
. Our review of the District Court's interpretation of the Speedy Trial Act is plenary. United States v. Rivera Constr. Co., 863 F.2d 293, 295 n. 3 (3d Cir.1988). But "[i]f the *428district court's factual conclusions are at issue, then a clearly erroneous standard is appropriate.” Id. “Finally, when the district court grants a continuance after a proper application of the statute to established facts, then an abuse of discretion standard is applied.” Id. "We accept the ultimate factual determination of the fact-finder unless that determination is either '(1) completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.’” Frett-Smith v. Vanterpool, 511 F.3d 396, 400 (3d Cir.2008) (quoting Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972)).
. It is undisputed that a period from January 18, 2008 (expiration of the first continuance order) through April 18, 2008 (disposition of tlie pre-trial motion) was excluded under 18 U.S.C. § 3161(h)(1)(D).
. Mayfield argues that the District Court itself admitted that no continuance was granted on May 7 because in its June 3, 2008 continuance order, it specified that “one previous speedy trial order” was granted. However, viewed in the totality of circumstances, the District Court's reference to one previous speedy trial order refers to the one formal order entered on November 1, 2007.
. The agreement stated in relevant part:
1. Should your client be prosecuted, no statements made by your client during the interview will be used against your client in the government's case-in-chief at trial or for purposes of sentencing, except as provided below.
3. The government may make derivative use of and may pursue any investigative leads suggested by any statements made or other information provided by your client, and may use the evidence or information obtained therefrom against your client in any manner.
4. The government may use your client’s statements and any information provided by your client to cross-examine your client and to rebut any evidence or arguments offered on your client’s behalf.
.Our review of the District Court's finding that Mayfield's waiver was voluntary, knowing and intelligent is plenary, but we are required to accept its factual findings unless *431they are clearly erroneous. United States v. Sriyuth, 98 F.3d 739, 748 (3d Cir.1996).
. Mayfield's argument that the District Court erred in permitting the Government to use Mayfield's proffer in the absence of his testimony is without merit. During the opening statement at trial — after the District Court denied Mayfield's motion to suppress the statements — Mayfield took the position contrary to statements made during his first proffer session by denying that he had taken the victim to New Jersey for purposes of prostitution. Therefore, Mayfield made a knowing strategic choice to trigger the waiver provision of the proffer agreement, allowing the prosecution to introduce the conflicting statements.
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OPINION
COWEN, Circuit Judge.
Defendants Jack H. Boyajian and Marvin Brandon (“Appellants”) appeal, pro se, from the judgment entered against them by the United States District Court for the Eastern District of Pennsylvania. We will affirm.
I.
Plaintiff Marshall, Dennehey, Warner, Coleman & Goggin, P.C. (“Marshall Den-nehey”) filed a complaint in the Philadelphia County Court of Common Pleas against the Appellants, Karen Wachs, and a number of corporate entities (“Corporate Defendants”). Marshall Dennehey alleged that it entered an agreement with the Defendants to defend them in a number of lawsuits arising out of their debt collection activities. However, the Defendants (except for Wachs) allegedly defaulted by failing to pay outstanding legal fees in the amount of approximately $160,092.76. In addition to this breach of contract claim, Marshall Dennehey asserted a cause of action for unjust enrichment.
*433The matter was removed to the District Court, and a bench trial was conducted. The District Court made its requisite findings of fact and conclusions in a memorandum and order entered on the docket on July 23, 2008.
The District Court initially noted that Brandon and Wachs are attorneys who at various times served as law partners or associates of Boyajian. In turn, Boyajian was the principal partner and owner of the Corporate Defendants. The Appellants acted pro se at trial, and the Corporate Defendants went unrepresented and tendered no defense. Marshall Dennehey also agreed to dismiss its claims against Wachs.
According to the District Court, the evidence “established that, at the request of Karen Wachs and Jack Boyajian, Marshall Dennehey agreed to provide legal representation of Defendants in regard to multiple lawsuits filed against them arising out of their various debt collection activities, including several class actions brought against Defendants under the Fair Debt Collection Act 15 U.S.C. § 1692.” (A3.) Marshall Dennehey’s services were initially retained through “a series of e-mails, dated April 14, 2004 to May 10, 2004, that were exchanged between Plaintiff and Ms. Wachs and Mr. Boyajian.” (Id.) As confirmed by the correspondence between the parties, Marshall Dennehey was retained under the same terms for the subsequent lawsuits. In turn, it performed legal services as set forth in the documentation submitted at trial, and the Defendants received and accepted these services. According to the District Court, the hourly rates charged for these services, specifically $200 in the class action matters and $175 for other cases, were fair and reasonable. Nevertheless, despite repeated efforts on the part of Marshall Dennehey, the Defendants still failed to pay the outstanding balance of at least $160,092.76.
Having thereby laid out the grounds for the Defendants’ liability for breach of contract, the District Court specifically addressed and rejected two contrary arguments presented by the Defendants, namely that the claims against them were barred by the Pennsylvania Statute of Frauds and that they were not liable because Marshall Dennehey failed to provide them with the requisite monthly invoices.
Turning to the unjust enrichment cause of action, the District Court observed “that Defendants requested and received from Marshall Dennehey the benefit of its legal services under circumstances in which it would be unjust for Defendants not to pay for those services.” (A6.) The District Court disagreed with the Defendants’ assertion that Marshall Dennehey spent too much time on any one matter, finding that the Defendants were provided skilled representation and that it was circumstances beyond Marshall Dennehey’s control, “including the conduct of its own clients,” which prevented it from resolving the lawsuits in a less expensive and speedier manner. (A7.)
Based on these findings of fact and conclusions of law, the District Court entered judgment in favor of Marshall Dennehey and against the remaining Defendants (including the Appellants) in the amount of $160,092.76. This appeal followed.
II.
The Appellants argue that the District Court committed reversible error by holding them “responsible to pay for alleged legal fees due to Plaintiff for services rendered to the Corporate Defendants in several class action lawsuits.”1 (Appellants’ *434Br. at 6 (emphasis added).) They therefore contend that the District Court offered no explanation for why it pierced the corporate veil to impose individual liability on them, especially when Brandon himself was neither an officer nor a shareholder of any Corporate Defendant. According to the Appellants, “Defendants did not request Plaintiff to provide them legal services individually and Plaintiff did not provide the Defendants or the Corporate Defendants a retainer agreement outlining their professional relationship.” (Id.) We nevertheless find that the District Court committed no reversible error in holding the Appellants liable for the unpaid legal fees.
As Marshall Dennehey addresses in some detail in its appellate brief, the record contained sufficient evidence to support finding that the Appellants either breached their contract or were unjustly enriched by requesting, receiving, accepting, and then not paying for legal services. For instance, the Appellants acknowledged in the District Court that they were named as defendants in thirteen of the debt collection lawsuits defended by Marshall Den-nehey.2 In fact, the District Court heard testimony that the defense of these two men was an important component of the debt collection litigation, especially in light of the evidently minimal assets possessed by the Corporate Defendants. Wachs, who served as the liaison with Marshall Dennehey, testified that she was never instructed to obtain separate retainer agreements for the Appellants when they were individually named as defendants. She further told the District Court that she informed Boyajian about such lawsuits and briefed him on the strategy and issues raised in the litigation. Brandon likewise testified that he knew that he was named as a defendant in a number of cases and that Marshall Dennehey was retained to represent him. The record also indicated that Boyajian wanted Marshall Dennehey “to make [the plaintiffs’ counsel in one of the debt collection actions] go through all the hoops” in his attempt to obtain discovery regarding Boyajian’s personal net worth. (A81 (emphasis omitted).)
The Appellants admittedly point to other evidence possibly supporting their position on appeal. But it is not our job to engage in our own fact-finding. See, e.g., Ragan, 62 F.3d at 507 (stating that appellate court may not substitute its own findings of fact). In the end, we must conclude that the District Court’s findings with respect to the Appellants were neither “ ‘completely devoid of a credible evidentiary basis’ ” nor lacking in any “rational relationship to the supporting data.” Id. (citation omitted).
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court possessed jurisdiction over this removed diversity case pursuant to 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise *434plenary review over the District Court’s legal conclusions, while its findings of fact are reviewed for clear error. See, e.g., Ragan v. Tri-County Excavating, Inc., 62 F.3d 501, 506 (3d Cir.1995); Voest-Alpine Trading USA Corp. v. Vantage Steel Corp., 919 F.2d 206, 211 (3d Cir.1990) This means that a factual finding may be overturned " ‘if it is completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data.' " Ragan, 62 F.3d at 507 (quoting Haines v. Liggett Group, Inc., 975 F.2d 81, 92 (3d Cir.1992)). The parties also do not dispute the District Court's application of Pennsylvania law.
. In their appellate brief, the Appellants likewise state that they were specifically named as defendants in seven lawsuits.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
*436ORDER
PER CURIAM:
Upon consideration of the pleadings filed relative to the motion to amend/correct opinion, the Court grants the motion. The opinion filed July 16, 2002, is modified by replacing the names of the appellants with their initials.
OPINION
K.J., a minor, by and through her parents B.J. and L.J. (collectively, “the parents”), appeals from the district court’s grant of summary judgment in favor of the Fairfax County School Board on her claims for reimbursement pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. § 1400 et seq. (West 2000). The parents seek reimbursement for the non-educational costs of K.J.’s five-month stay at a private psychiatric facility and three years’ tuition at a private boarding school. See 20 U.S.C.A. § 1412(a)(10)(C)(ii). We affirm.
I.
On January 14, 1997, a school counselor for the Fairfax County Public Schools (FCPS) referred K.J., then a tenth grader at an FCPS high school, for evaluation to determine whether she qualified for special education services pursuant to the IDEA. J.A. 177. K.J. had been previously diagnosed with emotional disabilities, including obsessive-compulsive disorder, bipolar disorder, and severe attention deficit hyperactivity disorder. Prior to tenth grade, FCPS personnel, noting that K.J. nonetheless had earned high grades, concluded that her disabilities did not impair her school performance. J.A. 153-56,163.
At the time of the 1997 referral, however, K.J.’s academic performance was deteriorating substantially, and she began demonstrating more serious behavioral problems. J.A. 198, 220, 262-65, 267. On April 2, 1997, subsequent to evaluation, FCPS informed KJ.’s parents that she was now eligible for special education services. J.A. 199-200. As a result, FCPS planned a meeting between the parents and a team of school personnel, including an administrator, special education teacher, and school psychologist, to develop an Individualized Education Program (IEP). The IDEA requires that an IEP team develop, for each student with a qualifying disability, a written IEP that includes a statement of the student’s current levels of educational performance, a summary of special education and related services to be offered, and measurable annual goals and short-term objectives. 20 U.S.C.A. § 1414(d).
Four or five days later, the parents admitted K.J. to the Graydon Manor Psychiatric Hospital in Leesburg, Virginia, because K.J. had an “emotional breakdown.” J.A. 8, 16, 390. While K.J. remained hospitalized at Graydon Manor, an IEP team convened on April 27,1997; at the parents’ request, the IEP meeting continued on June 12, 1997. The IEP team and the parents ultimately concluded that they would wait until K.J.’s discharge from Graydon Manor to determine an appropriate placement. J.A. 83, 207-18. The school system also agreed to, and later did, pay for the educational components of K.J.’s care at Graydon Manor. J.A. 8-9, 64, 391.
In September 1997, the parents removed K.J. from Graydon Manor and enrolled her in the Hyde School, a private boarding school located in Bath, Maine. J.A. 10. Although geared in many ways toward students with behavior problems, the Hyde School offered no special education program, no on-site clinical personnel, and no certified special education instructors.
The parties dispute when the parents notified FCPS of the transfer, but in any event the parents did not request reimbursement from FCPS of the approximate*437ly $25,000 annual tuition for the Hyde School until November 1997. J.A. 10-11, 84. In response to this request, FCPS scheduled another IEP team meeting with the parents for mid-December.
Prior to the meeting, on December 11, 1997, an FCPS psychologist traveled to the Hyde School to reevaluate KJ.’s “current levels of functioning” given her intervening hospitalization. J.A. 300-01, 306-10. The record reveals that at the time of the psychologist’s visit, K.J. continued to have many of the same academic and behavioral difficulties that she had demonstrated the prior year at her FCPS high school. J.A. 307; see also J.A. 335, 388-89.
The IEP team, the parents, and the Hyde School’s Director of Studies (who participated via speakerphone) then convened on December 18, 1997. The team developed an IEP proposing a local private day school, rather than the Hyde School, as the appropriate placement for K.J. J.A. 312-23. The school board maintains, and the parents do not dispute, that “private day school” denotes a school setting offering a full-day, non-residential educational program, smaller class sizes, and on-site clinical personnel. J.A. 77-88.
The IEP did not identify a particular school. J.A. 11, 18, 72-73. The parents contend that the IEP team members recommended conflicting placements for K.J. and that the IEP case manager improperly and inaccurately amended the IEP after the meeting to reflect a consensus on a private day setting as the recommended placement. J.A. 48. Contrary to the parents’ assertion, however, the evidence demonstrates that the team did reach a consensus as to a private day placement during the course of the IEP meeting. See J.A. 72-74, 84-85,101, and 312.
KJ.’s father signed the IEP form at the meeting, indicating that he did “NOT AGREE with the contents and recommendations of the proposed IEP,” and thus rejected the proposed placement. J.A. 312. Nonetheless, subsequent to this meeting, K.J.’s mother visited the private day schools identified orally by the IEP team as likely placements. She concluded that the schools did not offer the same opportunities for college-track classes and interscholastic sports that K.J. had in the regular education public high school and that KJ.’s classes would be comprised almost entirely, if not exclusively, of special education students. The parents apparently disapproved of the suggested private day schools on this basis. J.A. 10. The parents therefore continued to enroll K.J. at the Hyde School, although K.J. lived at home for summers and holidays. J.A. 10-11,18,1408.
More than one year later, on January 29, 1999, the parents initiated an administrative appeal requesting reimbursement from FCPS of the non-educational costs of Graydon Manor and tuition for the Hyde School for both the 1997-98 and 1998-99 school years, as well as attorneys’ fees. J.A. 968-69. In support of their request for reimbursement, the parents alleged that FCPS violated its duties under the IDEA and associated state regulations with respect to K.J. Id.
On July 30, 1999, a state hearing officer determined that a consensus of the IEP team at the December 1997 IEP meeting was “that [K.J.] should be placed in a local private day placement” and that this placement met the requirements of the IDEA. J.A. 1125-26. Nonetheless, the hearing officer concluded that FCPS should reimburse the parents in an amount equal to the cost of a “suitable local private day program.” J.A. 1126. Then, although K.J. should have graduated the prior month, the IEP team learned that K.J. had not satisfied her high school graduation requirements because she had not completed her senior English class. J.A. 1133-34.
*438Accordingly, on August 27, 1999, the IEP team convened again, over the parents’ objection. This meeting resulted in a recommendation to place K.J. at the Woodson Center, a program facility located adjacent to and as part of a local FCPS high school. J.A. 1133-34, 1147-50, 1408. A representative of the Woodson Center participated in the IEP team meeting. J.A. 1136. The Woodson Center provided college-track Advanced Placement classes at the high school co-facility, a special education program for students with disabilities, and clinical personnel; the IEP team also felt it would provide an appropriate transition from the residential school to a larger college setting. The parents again rejected the IEP and continued K.J. at the Hyde School for a third year. J.A. 1135.
In the meantime, both the parents and FCPS appealed the hearing officer’s July 30, 1999, decision. In their appeal, the parents sought reimbursement for the Hyde School tuition for the 1999-2000 school year, which they incurred subsequent to the hearing officer’s decision, in addition to the relief previously requested. J.A. 1406. The reviewing officer agreed with the hearing officer that FCPS had recommended an appropriate placement for K.J. However, the reviewing officer reversed the hearing officer’s directive that FCPS reimburse the parents because the reviewing officer found that the parents did not provide proper notice to the school before placing K.J. at the Hyde School or before continuing her there for the 1998-99 school year. J.A. 1406-12.
II.
In November 2000, the parents filed suit against the Fairfax County School Board in Virginia state court, appealing the reviewing officer’s decision pursuant to the IDEA and its state corollary, Va.Code Ann. § 22.1-214 (Michie 2000). The school board removed the case to federal district court.
On cross-motions for summary judgment, the district court granted summary judgment to the school board. K.J. v. Fairfax County Sch. Bd., No. 00-1898 (E.D.Va. Aug. 14, 2001). The district court noted at the outset that while it was required to “make an independent decision based on the preponderance of the evidence,” it also was required to “give due weight to the state administrative findings” and consider such findings “prima facie correct.” Id. at 8 (citing Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Kirkpatrick v. Lenoir County Bd. of Educ., 216 F.3d 380, 385 (4th Cir.2000); Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir.1992)).
The district court then proceeded to consider whether FCPS committed any procedural or substantive violation of the IDEA that entitled the parents to reimbursement. The district court first held that any procedural violations committed by FCPS, including its failure to offer a specific placement in writing at the December 1997 IEP meeting or to have a school representative from the proposed placement present at the IEP meeting, were not actionable because they did not result in a loss of an educational opportunity to K.J. or infringe on the parents’ right to participate in the IEP process. Id. at 10-17. The court noted that FCPS, with the parents’ participation, properly decided to wait until K.J. was stabilized and discharged from Graydon Manor before making a placement decision and that FCPS adequately identified a school placement for K.J. when it proposed in writing a “private day school” at the December 1997 IEP meeting. Id.
As to the failure to include a representative from a proposed private day school at *439the December 1997 IEP meeting, the district court observed that one of the primary purposes of including such a representative is “to ensure that the proposed placement is tailored to meet the child’s needs.” Id. at 14. In KJ.’s case this failure did not result in loss of an educational opportunity because “sufficient and varied personnel” were present at the meeting, including an FCPS representative “knowledgeable about the various private day schools’ resources” and whose duties included negotiating placements, and because the parents rejected the proposed placement, rendering any tailoring to the individual private day school unnecessary. Id. at 14-15. The court also observed that “the [parents], and their attorney, fully participated in the meetings where the IEP team developed an educational plan.” Id. at 13.
The district court further determined that each of the placements proposed by FCPS met the IDEA’S substantive requirements for a “free and appropriate education,” defined by the Supreme Court as “educational instruction designed to meet the unique needs of the [student with a disability], supported by such sendees as are necessary to permit the child ‘to benefit’ from the instruction.” Id. at 17 (quoting Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 187-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). The district court explained that the private day schools offered “small classes, extensive individual attention, structure and clinical support, experienced staff trained in special education and emotional disabilities, and many advanced level mathematics, science and foreign language courses.” Id. at 18. Similarly, the Woodson Center offered “clinical support, advanced level college preparatory classes, the opportunity for a smooth transition from a small residential setting to a larger college setting, and a special education program designed for students with emotional disabilities.” Id.
The court therefore denied all requests for additional reimbursement. The court concluded that the parents were not entitled to further reimbursement for the cost of KJ.’s hospitalization at Graydon Manor because the IDEA requires only reimbursement for appropriate educational services and because “[i]t is undisputed that FCPS reimbursed the [parents] with $8,440 for the educational services [K.J.] received from Graydon Manor. The [parents] point to no evidence which indicates that Graydon Manor provided [K.J.] with education services which exceeded this amount.” Id. at 19 (citing 20 U.S.C. § 1412(a)(10)(c)).
The court then held that the parents were not entitled to reimbursement for the tuition of the Hyde School because a court, in its discretion, can award reimbursement only if the school district has denied the student a “free and appropriate education” and the parents’ chosen placement is otherwise appropriate. Id. at 18-22 (citing 20 U.S.C. § 1412(a)(10)(C); Florence County Sch. Dist. v. Carter; 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)). Because each of the placements proposed by FCPS offered a “free and appropriate education” for K.J., the court concluded that the first of those prerequisites had not been met, without reaching the second. Moreover, even as to the period preceding FCPS’s proposed placement at a private day school, a court may deny “reimbursement to parents who unilaterally place their child in private programs” if the parents fail to give notice of “ ‘their intent to enroll their child in a private school at public expense.’ ” Id. at 19-20 (quoting 20 U.S.C. § 1412(a)(l)(C)(iii)(I)). Because it found that the parents failed to provide such notice, the court denied reimbursement of these expenses as well. Id.
III.
The parents contend that the district court erred in granting summary *440judgment against them to the school board. They argue that FCPS’s procedural violations in failing to propose in writing placement at a specific private day school and to include a representative of that school in the December 1997 meeting resulted in a denial of a “free and appropriate education.” They further challenge the district court’s determination that FCPS’s proposed placements and the services delineated in the IEP satisfied the IDEA’S substantive requirements.
After careful review of the record, the parties’ written and oral arguments, and the governing legal principles, we conclude that the parents cannot overcome their burden of showing that the state hearing officer’s factual findings were erroneous, see Barnett v. Fairfax County Sch. Bd., 927 F.2d 146, 152 (4th Cir.1991), and that the district court correctly decided the legal issues before it. Accordingly, we affirm on the reasoning of the district court.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathaniel Cooper appeals the district court’s order dismissing his civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cooper v. North Carolina State Bd. of Elections, No. 5:08-cv-00423-D (E.D.N.C. June 12, 2009). We deny Cooper’s motions to transfer and to expedite, and his “Emergency Motion” for “monetary relief and a cease and desist order against Equi-fax Credit Bureau and Piedmont Gas.” 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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SUMMARY ORDER
Plaintiff Donald Zedanovich (“plaintiff’) appeals from the March 4, 2009 judgment, amended by a March 13, 2009 judgment, of the District Court dismissing plaintiffs complaint, adopting the Report and Recommendation (“R&R”) of Magistrate Judge Gustave J. DiBianco dated February 6, 2009, and thereby affirming the decision of the Commissioner of the Social Security Administration denying plaintiffs application for disability benefits. On appeal plaintiff argues, inter alia, that the District Court erred in upholding the determinations made by the Administrative Law Judge (“ALJ”) because the ALJ erred in failing to elicit testimony from a vocational expert to address plaintiffs non-exertional limitations. We assume the parties’ familiarity with the facts and procedural history of the case.
The law of our Circuit on when the Commissioner must introduce testimony of a vocational expert is clear:
[Sjole reliance on the [g]rid[s] may be precluded where the claimant’s exertional impairments are compounded by significant nonexeriional impairments that limit the range of sedentary work that the claimant can perform. In these circumstances, the Commissioner must introduce the testimony of a vocational expert (or other similar evidence) *246that jobs exist in the economy which claimant can obtain and perform.
Butts v. Barnhart, 888 F.3d 877, 383-84 (2d Cir.2004) (quoting Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.1999)) (emphasis added). In other words, the mere existence of a non-exertional impairment does not alone trigger the need for vocational expert testimony. Rather, once the ALJ determines that a plaintiff does in fact suffer from non-exertional impairments, the ALJ must then determine whether those impairments are “significant” and “limit the range of sedentary work that the claimant can perform.” Id.
As the Magistrate Judge noted in the instant case, the ALJ “carefully analyzed plaintiffs nonexertional impairments and determined that there was no significant limitation in the range of unskilled sedentary work that plaintiff could perform.” (App’x 32) (emphasis in original). The ALJ’s determination was supported by substantial evidence.
We have reviewed each of plaintiffs claims on appeal and find them to be without merit. Substantially for the reasons stated by the Magistrate Judge in his careful and thoughtful R & R, adopted by the District Court, see Zedanovich v. Comm’r of Soc. Sec., No. 3:06-cv-1403, 2009 WL 577763 (N.D.N.Y. Mar.4, 2009), the March 4, 2009 and March 13, 2009 judgments of the District Court are AFFIRMED.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the District Court.
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OPINION
PER CURIAM.
Barry E. Shelly, proceeding in forma pauperis, appeals from an order of the District Court for the Western District of Pennsylvania denying his motions to proceed informa pauperis and dismissing his complaints for failure to prosecute under Fed.R.Civ.P. 41(b). For the reasons that follow, we will summarily vacate and re*300mand to the District Court for further proceedings. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
I.
On July 2, 2009, Shelley filed a motion to proceed in forma pauperis (“IFP”) in the Western District of Pennsylvania with a civil complaint against prison administration and staff for alleged violations of his constitutional rights. (W.D. Pa. No. 09-cv-00181). The crux of his action is the claim that prison health personnel failed to provide adequate treatment for a problem with his right foot, which left him unable to walk properly, and for a cavity that went untreated for two years such that he became unable to eat without a “parcel plate.” (Compl.2.) On July 9, 2009, Shelley filed a separate motion in the Western District to proceed IFP with a civil complaint against several parole officers for allegedly revoking his parole incident to a false arrest, failing to consider him for re-paróle, and making him serve time in excess of his sentence. (W.D. Pa. No. 09-cv-00181). In both cases, the District Court ordered Shelley to submit a new address (because it appeared that he had been released from prison) and either pay the filing fee or submit a valid IFP motion within twenty days.1 Shelley complied, and on August 13, 2009, he submitted an IFP application in which he indicated that he had no employment, no income or assets, and no dependents. He also included an inmate account statement dated July 8, 2009, that reflected a negative (-) balance of $308.80.
On August 13, 2009, the Magistrate Judge issued a Report and Recommendation (“R&R”) recommending that Shelley’s motion be denied in each case because his IFP application was “inadequate to justify in forma paupens status” and because his underlying complaints were “futile.” (Aug. 13, 2009, R&R 1-2.) On August 25, 2009, Shelley requested additional time to object to the R&R. The Magistrate Judge denied Shelley’s request without explanation on August 31, 2009.2 On September 10, 2009, after reviewing the record de novo, the District Court denied Shelley’s motion to proceed in forma pauperis, and dismissed both complaints without prejudice for failure to prosecute.3 Shelley filed a timely notice of appeal on October 7, 2009. Fed. R.App. P. 4(a)(1).
II.
The District Court denied Shelley’s IFP motions because it found his application inadequate, and appears then to have dismissed the complaints for failure to prosecute based on Shelley’s failure to either satisfy the IFP requirements or pay the *301filing fee. Denial of a motion to proceed in forma pauperis is a final order over which we have jurisdiction under 28 U.S.C. § 1291. Sinwell v. Shapp, 536 F.2d 15, 16 (3d Cir.1976). We review a district court’s denial of a motion to proceed in forma pauperis for abuse of discretion. See Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir.1983). We may take summary action if the appeal presents no substantial question. See 3d Cir. L.A.R. 24.7; I.O.P. 10.6.
III.
The in forma pauperis statute provides that the District Court may authorize the commencement of a civil action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees ...” 28 U.S.C. § 1915(a)(1). A District Court’s decision whether to grant IFP status is based solely on the economic eligibility of the petitioner. See Sinwell, 536 F.2d at 19. The court reviews the litigant’s financial statement, and, if convinced that he or she is unable to pay the court costs and filing fees, the court will grant leave to proceed in forma pauperis. Deutsch v. United States, 67 F.3d 1080, 1084 n. 5 (3d Cir.1995). Economic eligibility, however, does not require that a litigant subject himself to complete destitution to maintain his lawsuit. See Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir.1985).
Shelley’s IFP application was completed in full, and reflects that he is not employed, has received no income in the past twelve months, has no savings or assets, and no dependents. Although no longer incarcerated, Shelley also included an inmate account statement dated July 8, 2009, which reflects a balance of negative (-) $308.80 at the time he filed his complaint. See 28 U.S.C. § 1915(a)(2).4 Shelley’s application and account statement plainly satisfy the financial eligibility requirements of 28 U.S.C. § 1915(a)(1). The District Court thus abused its discretion in denying Shelley’s motion to proceed in forma pauperis,5
IV.
For the foregoing reasons, we will summarily vacate the September 10, 2009 order of the District Court and remand with instructions to grant Shelley’s motions to proceed in forma pauperis and allow the cases to proceed.
. These two actions were never formally consolidated, but it appears that the District Court has been treating them as such, entering identical dismissal orders on September 10, 2009, that include both civil action numbers in the caption (09-cv-181 and 09-cv-182). Shelley’s notice of appeal likewise references both civil action numbers, and this judgment shall govern both cases.
. It is unclear whether Shelley ever received this order as it appears to have been sent to the wrong address. The order reflects that it was sent to SCI Houtzdale on August 31, 2009, notwithstanding Shelley's notice of change of address which was docketed on August 13, 2009.
.Although the District Court did not adopt the recommendation of the Magistrate Judge, it is worth noting that the R&R appears to have improperly considered the merits of Shelley's claims in making its recommendation to deny IFP. (See Aug. 13, 2009, R&R 2). IFP determinations generally are made solely on the basis of indigence, without regard to the potential merit of a complaint. See Deutsch v. United States, 67 F.3d 1080, 1084 n. 5 (3d Cir.1995).
. Because Shelley was incarcerated at the time he filed his complaint, he was required to supply "a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint ..., obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2).
. Even if the District Court's denial of IFP had been proper, dismissing Shelley’s complaint for failure to prosecute would have been error. Before entering a punitive dismissal, the District Court is required to make explicit findings regarding the six factors enumerated in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 869 (3d Cir.1984). See Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir.1987); see also United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir.2003) ("We have opined that [the Poidis factors] must be weighed by a district court in determining whether the harsh sanction of dismissal is justified.”). Here, the District Court did not make any Poulis analysis, nor does it appear to have considered any of the Poidis factors in making its decision.
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OPINION
PER CURIAM.
Christopher Wills, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Middle District of Pennsylvania dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and an order denying his motion for reconsideration. We will affirm.
In 2001, Wills was convicted in the United States District Court for the Eastern District of Virginia of kidnapping resulting in death in violation of 18 U.S.C. *303§ 1201(a)(1) and interstate stalking resulting in death in violation of 18 U.S.C. § 2261A. Wills was sentenced to life in prison without parole. The United States Court of Appeals for the Fourth Circuit affirmed Wills’s conviction on direct appeal and the United States Supreme Court denied his petition for a writ of certiorari.
In 2006, the United States District Court for the Eastern District of Virginia denied Wills’s motion to vacate sentence pursuant to 28 U.S.C. § 2255. The Fourth Circuit Court of Appeals denied Wills’s request for a certificate of appealability and the United States Supreme Court denied his petition for a writ of certiorari. In 2007, Wills filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania, which the District Court construed as a successive § 2255 motion and dismissed for lack of jurisdiction. We dismissed Wills’s subsequent appeal because it was untimely filed. See C.A. No. 08-1933.
In 2009, Wills filed another habeas petition in District Court pursuant to § 2241 claiming, as he had in 2007, that his conduct did not satisfy the federal jurisdictional element of the kidnapping statute because he did not accompany his victim across state lines. Wills argued that a 2006 amendment to the statute expanded federal jurisdiction to reach his conduct, which involved deceiving his victim to voluntarily travel across state lines to seek a purported job opportunity.1 Wills maintained that he could seek relief under § 2241 under our decision in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). The District Court disagreed that Wills could seek relief under § 2241 and dismissed his habeas petition for lack of jurisdiction. The District Court also denied Wills’s motion for reconsideration. This appeal followed.
As recognized by the District Court, motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences. Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). Although a petitioner may challenge a conviction pursuant to § 2241 where a § 2255 motion would be “inadequate or ineffective,” a § 2255 motion is not inadequate or ineffective because the sentencing court denies relief or because the petitioner is unable to meet the gatekeeping requirements of § 2255. Cradle v. United States, 290 F.3d 536, 538-39 (3d Cir.2002) (per curiam). Rather, a § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim. Id. at 538.
Wills has not made such a showing. Wills litigated pre-trial the issue of whether the facts alleged in the indictment satis*304fied the jurisdictional element of the kidnapping statute. See United States v. Wills, 234 F.3d 174, 179 (4th Cir.2000) (holding that the fact that Wills willfully caused unaccompanied travel over state lines was sufficient to confer federal jurisdiction under 18 U.S.C. § 1201(a)(1)). Wills raised the issue again on direct appeal, United States v. Wills, 346 F.3d 476, 487 (4th Cir.2003), and in his § 2255 proceedings. The fact that Wills was unsuccessful or may be barred from filing a second § 2255 motion does not render § 2255 inadequate or ineffective.
We agree with the District Court that this case is distinguishable from In re Dorsainvil, 119 F.3d at 248, in which we held that the petitioner could raise a claim under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), in a habeas petition pursuant to § 2241. The petitioner in Dorsainvil had no earlier opportunity to challenge his conviction for a crime that the intervening change in substantive law in Bailey may have negated. Id. at 251.2 Unlike in Dorsainvil, the 2006 amendment to § 1201(a)(1) is not an intervening change in substantive law that may have negated the crime for which Wills is incarcerated. To the contrary, Wills concedes that his conduct is covered by the amended statute.
Because this appeal does not raise a substantial question, we will summarily affirm the District Court’s orders.3
. The statute in effect at the time of Wills's offense defined kidnapping as:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when — (1) the person is willfully transported in interstate or foreign commerce;
18 U.S.C. § 1201(a)(1) (1998). The statute, as amended in 2006, defines kidnapping as:
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when — (1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;
18 U.S.C. § 1201(a)(1) (2006).
. In Bailey, the Supreme Court held that a defendant could not be convicted of using a firearm during and in relation to a drug-trafficking crime under 18 U.S.C. § 924(c)(1) unless the government proved that the defendant "actively employed the firearm during and in relation to the predicate crime.” Dorsainvil, 119 F.3d at 247 (citation omitted).
. Wills's request for appointment of counsel is denied.
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OPINION
PER CURIAM.
Mark Nixon, a state prisoner proceeding pro se, appeals from the District Court’s order dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, we will vacate and remand for further proceedings. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In February 2005, Nixon was found guilty in the Allegheny Court of Common Pleas of narcotics violations, and the court sentenced him to a five- to ten-year sentence. In December 2005, Nixon filed a PCRA petition for post-conviction relief. The PCRA court denied Nixon’s PCRA petition, and the Superior Court affirmed the denial. On October 18, 2007, the Pennsylvania Supreme Court denied Nixon’s request for allowance of appeal.
In February 2009, Nixon filed the instant habeas petition in District Court, alleging ineffective assistance of counsel, violation of double jeopardy, use of evidence obtained pursuant to an unlawful arrest, and use of an unconstitutionally selected grand jury. The District Court referred the petition to a Magistrate Judge, who issued a report recommending the dismissal of the petition as time-barred by the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The report, dated July 29, 2009, granted the parties until August 17, 2009, to file objections. On August 20, 2009, 2009 WL 2595680, the District Court adopted the Magistrate Judge’s report and denied Nixon’s habeas petition sua sponte on limitations grounds.
Four days later, on August 24, 2009, the District Court received Nixon’s motion for extension of time to file objections to the Magistrate Judge’s report. Nixon had handed this motion to prison officials on August 14, 2009. On August 27, 2009, the District Court denied Nixon’s motion as moot. Nixon appeals from the District Court’s August 20 order denying his habe-as petition. We granted a certificate of appealability to consider whether the District Court erred in summarily dismissing Nixon’s petition sua sponte on limitations grounds.
II.
We conclude that the District Court erred in dismissing Nixon’s petition on timeliness grounds without affording Nixon an adequate opportunity to file objections to the Magistrate Judge’s Report and Recommendation. While a District Court possesses the authority to raise AEDPA’s statute of limitations sua sponte, a habeas *306petitioner must first be afforded fair notice and an opportunity to be heard on the issue of timeliness and equitable tolling. See Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); United States v. Bendolph, 409 F.3d 155, 168 (3d Cir.2005) (en banc). AEDPA’s limitation period is subject to equitable tolling, so notice and opportunity might also require fact finding if a petitioner advances arguments for equitable tolling. See Miller v. N.J. Dep’t. of Corr., 145 F.3d 616, 617-18 (3d Cir.1998).
Here, the Magistrate Judge sua sponte raised the issue of AEDPA’s statute of limitations in his report. The District Court notified Nixon of the timeliness issue by mailing him a copy of the report. Theoretically, Nixon was afforded an opportunity to respond, as he was granted seven days from the date of service to file his objections. During that seven-day window, Nixon filed a motion for extension of time to file objections to the report. However, while his motion was dated on August 14, 2009, the District Court did not receive the motion until August 24, 2009. When the court received his timely filed motion,1 the District Judge had already adopted the Magistrate Judge’s report and dismissed the petition on timeliness grounds. Thus, Nixon was never afforded an adequate opportunity to file his objections to the report.
Accordingly, we will vacate the District Court’s order and remand. On remand, the District Court is directed to allow Nixon to file objections to the Magistrate Judge’s report, and thereafter to conduct any further proceedings consistent with this opinion.
. A pro se petitioner's motion is treated as served at the time it is delivered to the prison officials. See Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988).
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OPINION
PER CURIAM.
Petitioner Vitaliy Ivanovich Andreyev seeks review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). The Government has moved to summarily affirm the BIA’s decision. Because the appeal presents no substantial question, we will grant the motion and deny Andreyev’s petition.
I.
Andreyev is a native and citizen of Ukraine who entered the United States in 1996 as' a non-immigrant visitor and remained in the United States after the expiration of his visa. In March 2009, the Department of Homeland Security initiated removal proceedings against Andrey-ev for remaining in the United States without authorization. See Immigration and Nationality Act (“INA”) § 237(a)(1)(B). Andreyev appeared before an Immigration Judge, and elected to proceed pro se. After finding that Andreyev was not eligible for any relief from removal, the Immigration Judge ordered him removed from the United States to Ukraine. Andreyev appealed the Immigration Judge’s decision to the BIA, arguing that he was deprived of due process because he was not given an opportunity to argue his eligibility for discretionary relief from removal, including asylum. The BIA conducted a de novo review and affirmed the Immigration Judge’s decision, finding that Andreyev had been provided with a full and fair hearing, and that he had failed to provide a factual basis to support a claim for asylum, withholding of removal, or cancellation of removal.
Still proceeding pro se, Andreyev filed a motion to stay removal proceedings in this Court, arguing chiefly that his removal proceeding was fundamentally unfair because he was deprived of his right to be referred to an asylum officer for a “reasonable fear determination” pursuant to 8 C.F.R. § 1208.31. Andreyev also argues that he was not informed of his potential eligibility for asylum, withholding of removal, or cancellation of removal, and that the Immigration Judge and BIA failed to evaluate these claims on the merits. The Government has moved for summary affir-mance of the BIA’s decision.1 Andreyev has filed no opposition.
II.
We have jurisdiction to review a final order of removal under INA § 242(a). Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Because the BIA issued its own opinion, we review its decision rather than that of the Immigration Judge. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we review the decision of the Immigration Judge to the extent that the BIA defers to or adopts the Immigration Judge’s reasoning. See Chavarria, 446 F.3d at 515. We review factu*308al determinations of the BIA under the deferential substantial evidence standard. Id. Under the substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). Our review over the BIA’s conclusions of law is plenary. Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.2006).
III.
Andreyev argues that he was deprived of a fair opportunity to present his claims for immigration relief. In the immigration context, due process entitles an alien to “a full and fair hearing and a reasonable opportunity to present evidence.” Romanishyn, 455 F.3d at 185. The record reveals no violation of due process. See Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir.2006). Andreyev was informed by the Immigration Judge of his right to retain counsel and was provided with a list of low cost and pro-bono legal services providers. A.R. 61-62. The Immigration Judge offered Andreyev a continuance in order to retain counsel, and Andreyev elected to proceed pro se. A.R. 62. Andreyev’s rights of evidence and appeal were explained to him, and he was given the opportunity to address the court. A.R. 62, 65. The Immigration Judge also questioned Andreyev to ensure that he had no viable claims for relief. A.R. 64-65. For these reasons, we reject Andreyev’s due process claim.
Andreyev next argues that pursuant to 8 C.F.R. §§ 1208.31 and 1238.1, he should have been referred to an asylum officer for a “reasonable fear determination” to establish his eligibility for asylum. This requirement is applicable only to individuals who have been ordered removed for committing an aggravated felony pursuant to INA § 238(b). Andreyev was charged with removability under INA § 237(a)(1)(B) for overstaying his visa. Nothing in the record suggests that An-dreyev was ordered removed in connection with a felony conviction, or that he is otherwise entitled to a “reasonable fear determination” pursuant to 8 C.F.R. § 1208.31. Furthermore, because Andrey-ev was placed in removal proceedings before he filed any applications for immigration relief, the proper official to adjudicate any applications would have been an immigration judge and not an asylum officer. See 8 C.F.R. §§ 208.2(b), 208.4. The Immigration Judge in this case did in fact consider whether Andreyev had any basis for immigration relief, and found that he did not. The BIA also considered these claims, and made a de novo determination that Andreyev had failed to provide a proper factual basis for a claim for asylum, withholding of removal, protection under the Convention Against Torture, or cancellation of removal. Nothing in the record suggests that the BIA erred in reaching its conclusion.
In his declaration on appeal to the BIA, Andreyev stated that he came to the United States in 1996 due to mounting concerns about mass unemployment, poverty, and corruption in his native Ukraine. A.R. 10-11. He also stated that he became afraid after two friends of his were beaten by law enforcement for failure to pay their debts. A.R. 10. Andreyev has been living and working in the United States for over ten years, and contends that if he is removed to the Ukraine he will be homeless because he has no money, no job, and no family there, a fate he considers tantamount to suicide. Andreyev’s circumstances, although regrettable, do not constitute a basis for asylum or withholding of removal, which require a showing of persecution on account of membership in a particular social group. See Matter of Acosta, *30919 I. & N. Dec. 211, 233-34 (BIA 1985); Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998). Poverty and homelessness, while “appealing to sympathy and compassion,” are “far too vague and all encompassing to be characteristics that set .the perimeters for a protected group within the scope of the Immigration and Naturalization Act.” Escobar v. Gonzales, 417 F.3d 363, 368 (3d Cir.2005); see also Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir.2003). The BIA reasonably concluded from the evidentiary record that Andreyev failed to establish membership in a particular social group, and was therefore ineligible for asylum. See 8 U.S.C. § 1101(42)(A); Lukwago, 329 F.3d at 170 (denying asylum where alien could not demonstrate that he was targeted because of membership in a particular social group).
Likewise, Andreyev’s anticipated poverty is insufficient to establish eligibility for withholding of removal under the Convention Against Torture. See 8 C.F.R. § 208.18(a)(1); see also Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir.2008) (en banc) (holding that suffering attributable to the “unfortunate but unintended consequences of the poor conditions” in the country of removal is not “torture” under CAT). The BIA also correctly found that Andreyev failed to demonstrate that he had a qualifying United States citizen or lawful permanent resident relative to establish eligibility for cancellation of removal. See 8 U.S.C. § 1229b(b). Andreyev’s companion possesses a green card, but he is not legally married to her. To establish eligibility for cancellation of removal through a spouse, the marriage must be legally valid. See So Chun Chung v. INS, 602 F.2d 608, 610 (3d Cir.1979).2 There is nothing in the record to suggest that An-dreyev has any other qualifying relatives.
Although we appreciate Andreyev’s strong desire to remain in the United States, the BIA committed no legal error in reaching its conclusion that Andreyev is not eligible for immigration relief. Accordingly, we will grant the Government’s motion for summary action and deny An-dreyev’s petition for review. See Third Circuit LAR 27.4; I.O.P. 10.6. There is no substantial question on appeal. See Nken v. Holder, — U.S. —, 129 S.Ct. 1749, 1761, 173 L.Ed.2d 550 (2009).
. Although the Government filed a motion seeking what it called “summary affirmance” of the BIA's decision, the Court understands the Government actually to be seeking a summary denial of Andreyev’s petition for review.
. At the hearing before the Immigration Judge, Andreyev referred to his companion as his common law wife. A.R. 64. Andreyev did not argue to the BIA that he had satisfied any state's legal requirements for establishing a common law marriage, however. See Bejar v. Ashcroft, 324 F.3d 127, 132 (3d Cir.2003) (noting that the consequences of nonexhaustion are jurisdictional).
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OPINION
BARRY, Circuit Judge.
These appeals emanate from a lengthy drug trafficking trial at which numerous defendants were convicted. In this opinion, we will address the challenges of Arse-nio Arzola (“Arsenio”) and his brother Mi-sael Arzola (“Misael”) to their respective convictions for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), the sole issue upon which we heard oral argument. After having carefully considered those challenges, as well as defendants’ other challenges to their convictions and sentences, we will affirm.1
I.
Because we write solely for the parties’ benefit, we set forth only those facts necessary to our analysis of the one issue we will discuss.
At trial, the prosecution presented powerful evidence of a vast drug trafficking conspiracy ranging from October 1999 to June 2005. The evidence included the testimony of numerous cooperating witnesses; *311substantial police surveillance of drug transactions (both large and small); testimony regarding controlled purchases; hundreds of recorded conversations by and among the defendants; and physical evidence seized during an early morning raid of the conspiracy’s stash houses and the defendants’ residences, including substantial quantities of cocaine; drug paraphernalia such as cutting agents, scales, and drug ledgers; guns; and thousands of dollars in cash.
The prosecution presented highly damaging evidence concerning Arsenio and Mi-sael’s involvement in this drug trafficking conspiracy, including their involvement in a number of large drug transactions. We recount here only evidence that is relevant to the one issue we address in this opinion.
One relevant event occurred on May 25, 2005. On that date, co-conspirators Jose Reyes and Ruben Soto sold three kilograms of cocaine to the Arzolas for over $66,000. That evening, after exiting one of the conspiracy’s Jersey City stash houses, Arsenio and Misael became aware of police surveillance. Misael called his girlfriend who was “home” and twice told her to “hide” “the toy,” a thinly veiled request for her to conceal his gun.
The investigation came to a head on June 30, 2005, when law enforcement executed search and arrest warrants at the defendants’ residences and the conspiracy’s stash houses. At approximately 5:40 a.m., law enforcement officers in plainly marked clothing executed a no-knock warrant at Arsenio’s residence. As law enforcement was breaking a security gate outside his residence, Arsenio was spotted in an upstairs window, through which he presumably saw the raid. Then, as law enforcement began to open the residence’s exterior door with a battering ram, two shots were fired from a .38 caliber gun from within the residence towards the exterior door. Officers entered the residence, arrested Arsenio, and seized over $5,373 in cash and the recently fired gun.2
Simultaneously, law enforcement executed a warrant at Misael’s apartment. There, in his bedroom, was found a loaded .380 caliber gun located beneath a night stand, $5,950 in cash, and 20.69 grams of cocaine in a jacket pocket.
Both Arsenio and Misael were convicted of conspiring to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a) & (b) and 21 U.S.C. § 846. Neither challenges the sufficiency of the evidence underlying those convictions. They were also convicted of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), and Arsenio was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).3
II.
Arsenio and Misael challenge the sufficiency of the evidence underlying their convictions for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). We exercise plenary review of those challenges. United States v. Bornman, 559 F.3d 150, 152 (3d Cir.2009). In so doing, “we examine the totality of the evidence, both direct and circumstantial, and must credit all available inferences in favor of the government.” United States v. Sparrow, 371 *312F.3d 851, 852 (3d Cir.2004) (quotation omitted). We are mindful that “[i]t is not for us to weigh the evidence.” United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir.1989). Rather, we must affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). A defendant’s burden on a sufficiency challenge “is extremely high.” United States v. Lore, 430 F.3d 190, 203 (3d Cir.2005).
To establish that a defendant possessed a firearm in furtherance of a drug trafficking crime, the government is required to prove that the defendant: (1) participated in an enumerated offense; (2) possessed the firearm; and (3) that the possession was “in furtherance of’ the drug trafficking crime. Only the third element is disputed here.
The possession “in furtherance of’ standard of 18 U.S.C. § 924 has limits. “Under § 924(c), the mere presence of a gun is not enough. What is instead required is evidence more specific to the particular defendant, showing that his or her possession actually furthered the drug trafficking offense.” Sparrow, 371 F.3d at 853. “Put another way, the evidence must demonstrate that possession of the firearm advanced or helped forward a drug trafficking crime.” Id.; see also H.R.Rep. No. 105-344, at 12 (1997) (noting that prosecution must “clearly show that a firearm was possessed to advance or promote the commission of the underlying offense”).
In Sparrow, we enumerated a nonexclusive list of eight relevant factors for a court to consider in reviewing a sufficiency challenge to a § 924(c) conviction. Specifically, a court must consider:
the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.
Sparrow, 371 F.3d at 853 (quotation omitted); accord United States v. Iglesias, 535 F.3d 150, 157 (3d Cir.2008).
With respect to Arsenio, nearly all of the Sparrow factors demonstrate that his possession of the .38 caliber gun was in furtherance of the drug trafficking conspiracy. First, the evidence amply demonstrated that Arsenio was engaged in a massive drug trafficking conspiracy involving the regular movement of kilos of cocaine and thousands of dollars. Again, neither Arsenio nor Misael has challenged the sufficiency of the evidence underlying their drug trafficking conspiracy convictions. In short, Arsenio was, by no means, a recreational or casual participant in the underworld of drug trafficking.
Second, the gun fired on June 30, 2005 was readily accessible to Arsenio, a fact he does not dispute. (Arsenio Br. at 19.) Indeed, in the moments between when he witnessed law enforcement breaching his security gate to when the officers began to batter down his door, the gun was accessed and twice fired at the exterior door. That timeline indicates that the gun was strategically located so as to be immediately retrievable for Arsenio to protect himself, his criminal proceeds, and the continuing viability of the drug trafficking conspiracy. And it was the same gun Ar-senio had with him during at least one drug transaction with Nelson Reyes.
Third, the gun was a semi-automatic handgun, not an antique musket nor a *313hunting rifle. Fourth, Arsenio concedes that his possession of the gun was illegal because he was a convicted felon. (Id.) Fifth, as Arsenio again concedes, the gun was loaded. (Id.) Sixth, and finally, the gun was found in proximity to over $5,000 in cash, which the jury could permissibly infer was the proceeds of drug transactions due to the nature of Arsenio’s illicit business and the dearth of evidence of any legitimate income.
We are not moved by the fact that no drugs were seized at Arsenio’s residence. Although the usual § 924(c) conviction involves the seizure of a firearm in relative proximity to drugs, this factor — or any other single factor — is not required under Sparrow. See 371 F.3d at 853. Moreover, the prosecution elicited testimony that drug dealers typically do not store their inventory at them residences, but rather, as here, use stash houses for that purpose. Accordingly, the absence of drugs in Arse-nio’s residence, in which small children were present, does not undermine the jury’s conclusion that he possessed the gun in furtherance of a drug trafficking conspiracy.
The jury permissibly concluded that Ar-senio’s gun furthered his vast drug trafficking conspiracy — the only element in dispute — by protecting him, a central participant in the conspiracy, and the conspiracy’s proceeds. Arsenio concedes that he bears a “heavy burden” in challenging the sufficiency of the evidence supporting a conviction. (Arsenio Br. at 17.) He has not met that burden here.
We will similarly affirm Misael’s conviction for possession of a firearm in furtherance of a drug trafficking conspiracy. Like his brother, Misael was engaged in a conspiracy that led him to handle drugs on a regular basis, resulting in hundreds of thousands of dollars in criminal proceeds. Also like his brother, Misael’s gun was readily accessible, located underneath a night stand in the bedroom of his apartment, not stowed away in a secret compartment nor secured under lock and key. Again, like his brother, his gun was a loaded, semiautomatic handgun located in close proximity to $5,950 in cash, which the jury could properly infer — and which we must assume inferred — was the proceeds of the drug conspiracy.
Misael’s firearm possession differs from Arsenio’s in that Misael’s gun was in the same bedroom as 20.69 grams of cocaine, thus placing the gun in close proximity to drugs (and he was not a convicted felon). Importantly, evidence adduced at trial proved that Misael dealt in quantities of twenty to thirty grams of cocaine. For example, Rafalito Bello, a cooperating witness, testified that he regularly purchased quantities of twenty to thirty grams of cocaine from Misael. Moreover, in April 2005, law enforcement coordinated two controlled sales of cocaine from Misael to a confidential source. In both controlled sales, the confidential source purchased roughly thirty grams of cocaine from Misa-el for $600. Accordingly, the jury could permissibly infer that the drugs seized in the bedroom mere steps from the loaded gun were in fact Misael’s drugs ready for distribution. And, of course, Misael’s May 25, 2005 phone call to his girlfriend, imploring her to hide the “toy” (which the jury could permissibly infer was the same gun later seized in his bedroom) demonstrated a consciousness of guilt indicating that he possessed the gun to protect the drug conspiracy.
At the end of the day, both Arsenio and Misael face a “highly deferential” standard *314of review in challenging the sufficiency of the evidence underlying their § 924(c) convictions. See Bornman, 559 F.3d at 152. Indeed, a rational juror can certainly have concluded that, by possessing guns, Arsenio and Misael were advancing and promoting their criminal enterprise by protecting themselves (both central participants in the conspiracy), protecting the proceeds of their criminal activity, and, in the case of Misael, protecting drugs themselves.4
III.
We will affirm the judgments of sentence.
. In a separate opinion, we note and reject the challenges of their co-defendants.
. Nelson Reyes (no relation to Jose Reyes), a cooperating witness, testified that he saw Ar-senio with the .38 caliber gun at one of the stash houses when he purchased cocaine from Arsenio.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Arsenio further contends that:
(1) there was insufficient evidence to establish a connection between the discharge of the gun and a drug-trafficking crime for purposes of applying a ten-year mandatory term;
(2) his sentence was procedurally and substantively unreasonable due to myriad errors;
(3) the prosecution failed to establish the fact of a prior conviction for purposes of applying 21 U.S.C. § 841 (b)( 1 )(A)(ii);
(4) the plain language of 18 U.S.C. § 924(c)(1)(A) precludes the application of a consecutive ten-year mandatory minimum;
(5) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires the jury to make a drug quantity finding; and
(6) his constitutional rights were violated by the application of a ten-year consecutive mandatory minimum absent a jury finding with respect to the discharge of his firearm.
Misael also contends that:
(1) there was insufficient evidence to support the weight of cocaine attributed to him;
(2) the prosecution improperly commented on defense counsel’s ethics and integrity;
(3) the prosecution improperly vouched for a government witness;
(4) his right to remain silent was violated;
(5) the cumulative effect of the trial errors denied him a fair trial;
(6) the District Court abused its discretion in denying him a hearing to challenge the weight of cocaine attributed to him; and
(7) the District Court misunderstood its discretion in sentencing him.
We have carefully reviewed the record and considered these issues. Each issue is without merit, and is rejected without further discussion.
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OPINION
PER CURIAM.
Petitioners Aleksander Nilaj and Mire Preldakaj, husband and wife, seek review of the Board of Immigration Appeals’ (“BIA”) final order dismissing their appeal of the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Nilaj and Preldakaj are natives and citizens of Albania.1 In October 2006, they attempted to enter the United States pursuant to the Visa Waiver Program2 by presenting fraudulent passports, whereupon they requested asylum and withholding of removal based on past political persecution and fear of future persecution, as well as relief under the CAT. After a credible fear interview, the Department of Homeland Security commenced asylum-only proceedings by filing a Notice of Referral with the immigration court.
At an October 2007 immigration hearing, Nilaj testified that he began supporting the Democratic Party of Albania in 1990, *316but that he did not become a registered party member until 1991. In December 1990, he participated in a protest in the city of Shkoder to remove a statue of Stalin. In an effort to disperse the crowd, police began beating protestors with rubber sticks and Nilaj sustained an injury to his back. In March 1992, the Democratic Party won the national election. Following the election, Nilaj testified that he did not experience any further problems until 1997, when the Socialist Party gained power in the national election. Nilaj testified that he began to receive threats and was publicly warned to leave the Democratic Party. In April 1999, during a political rally in which Nilaj participated, police began shooting into the crowd and Nilaj sustained a gun shot wound to his finger. Following that incident, Nilaj continued to receive threats warning him to leave the Democratic Party.
In December 1999, he left Albania for the United Kingdom seeking political asylum. After being denied asylum in the United Kingdom, Nilaj returned to Albania in 2004 and resumed participating in the activities of the Democratic Party. Nilaj testified that in July 2005, shots were fired into his home. No one was injured. Although he reported the incident to police, they refused to take action. In July 2005, the Democratic Party won the national election and Nilaj testified that he did not experience any harm for nearly a year. However, in May 2006, while returning home alone, four individuals attacked him. Although Nilaj could not identify his attackers, he recalled them telling him to leave the country, threatening to kidnap his wife, and calling him a “Democratic Pig.” Nilaj’s sustained a head wound during the attack, but did not seek medical attention or contact the authorities. Nilaj testified that this incident prompted him to leave Albania and seek asylum in the United States. He did not leave Albania until September 2006, however, and admitted that he did not receive any additional threats prior to leaving.
Dr. Bernd Fischer, a professor of Balkan history at Indiana University and an expert on country conditions in Albania, testified on Nilaj’s behalf as well as submitted an affidavit into the record. Dr. Fischer testified that he did not think it was a real possibility that Nilaj could return to his native town of Vulkil and that he would have a hard time remaining inconspicuous. Dr. Fischer also testified that he believed that Democratic Party members are still at risk for harm in Albania, despite the party’s election to power, as members continue to be attacked. He also described the Albanian police as corrupt because many were hired during Socialist control of the country.
The IJ determined that Nilaj testified credibly, but nonetheless found that based on the evidence presented, he was unable to conclude that Nilaj suffered past persecution in Albania. In addition, the IJ determined that conditions in Albania had changed such that Nilaj did not have a well-founded fear of persecution if he were to return.
Nilaj appealed the IJ’s decision to the BIA and, in a July 2008 opinion, the BIA dismissed Nilaj’s appeal. The BIA determined that even if Nilaj had demonstrated past persecution, the Government demonstrated changed conditions such that Nilaj does not have a well-founded fear of future persecution. Specifically, the BIA found that the 2005 State Department Country Report submitted by the Government did not indicate any increased level of violence against members of the Democratic Party of Albania. Furthermore, the Country Report observed that the 2005 elections have aided in Albania’s democratic development. This petition for review followed.
*317II.
We exercise jurisdiction to review the BIA’s final order of removal under Immigration and Nationality Act (“INA”) § 242(a) [8 U.S.C. § 1252(a) ]. Because the BIA provided its own analysis, we review the decision of the BIA. See Lukwago v. Ashcroft, 329 F.3d 157, 166 (3d Cir.2003). We use a substantial evidence standard to review factual findings. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). Under the substantial evidence standard, findings are upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001).
An applicant may demonstrate eligibility for asylum by showing either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]. Significantly, “persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.
Nilaj contends that the IJ and BIA erred in concluding that he failed to demonstrate past persecution or a well-founded fear of future persecution. He first presents significant argument that the threats and violence that he experienced in Albania, both in the years before he left for the United Kingdom and after he re-
turned in 2004, when taken together, rise to the level of past persecution. However, even if we were to agree, we find that substantial evidence supports the BIA’s determination that even assuming past persecution, any presumption of a well-founded fear of future persecution is rebutted by a fundamental change in Albania’s country conditions. See 8 C.F.R. § 1208.13(b)(l)(i) (even if past persecution has been established, asylum can still be denied if “[tjhere has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality ... on account of ... political opinion.”).
As mentioned, in rendering its decision that Nilaj does not have a well-founded fear of future persecution, the BIA relied primarily on the Government’s presentation of the 2005 State Department Country Report for Albania. The BIA noted that the Country Report specifically observed that the 2005 election of the Democratic Party to power was “a step forward in the country’s democratic development.” (See Administrative Record 3.) Furthermore, even though Dr. Fischer opined that police corruption still persists in Albania, the County Report indicates that progress is being made in retraining police and prosecuting abuses. (Id) Moreover, there is no indication that the Socialist party, either through its own organization or through Government authorities, is engaged in a pattern of “abuse or coercion” against its political opponents. (Id.) The BIA therefore concluded that Nilaj had not established a well-founded fear of persecution.
A review of the record does not compel a contrary conclusion.3 See Zubeda v. *318Ashcroft, 333 F.3d 463, 477-78 (3d Cir.2003) (“Country reports ... are the most appropriate and perhaps the best resource for information on political situations in foreign nations.”); see also Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir.2008) (holding that rebanee on country reports was sufficient to rebut presumption of well-founded fear of future persecution based on support for Democratic Party in Albania). We therefore agree with the BIA’s conclusion that Nilaj is not entitled to asylum, and as a necessary corollary, is not entitled to withholding of removal. See Lukwago, 329 F.3d at 182. Finally, the BIA did not err when it concluded that Nilaj had not established a basis for relief under the CAT, as he did not demonstrate that it is more likely than not that he would be tortured if returned to Albania.
. Nilaj is the lead petitioner, and we thus will refer primarily to him throughout our Opinion.
. The Visa Waiver Program ("VWP”) is an expedited admission procedure that allows visitors from certain designated countries to enter the United States for up to ninety days without a non-immigrant visa if they meet certain requirements. See 8 U.S.C. § 1187(a); 8 C.F.R. § 217.2(a). The VWP is not limited to aliens who are actually nationals of the designated countries, but also includes individuals, like Nilaj and Preldakaj, who present fraudulent travel documents from such countries. See 8 C.F.R. § 217.4. In exchange for admission under the VWP, applicants must waive any right to administrative or judicial review of an immigration officer's determination as to admissibility, and any right to contest their removal after admission, except on the basis of an application for asylum. See 8 U.S.C. § 1187(b).
. Substantial evidence also supports the BIA's finding that Nilaj could avoid future persecution by relocating within Albania as two of his family members continue to reside in the country without incident. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). Although Nilaj makes the valid poinl that these two family members are not themselves Demo*318cratic activists, he has not shown that he, an admitted low-level member of the party, would be "singled out” for persecution should he relocate within the country. Id.
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11-05-2022
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OPINION
SMITH, Circuit Judge.
Landon John Plate pleaded guilty to one count of possession of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4)(B). Pursuant to U.S.S.G. § 2G2.2(a)(l), the District Court calculated a base offense level of 18. After four enhancements under U.S.S.G. § 2G2.2 and one downward adjustment, Plate’s total offense level was 28 and his criminal history score was zero. Based on these calculations, Plate’s advisory Guidelines range was 78 to 97 months of imprisonment. Plate requested a downward variance to a sentence of five years of probation without jail time. The District Court sentenced him to 36 months imprisonment and 15 years of supervised release. Plate appeals that sentence. We will affirm the judgment of the District Court.1
I.
We review Plate’s sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). Our review for abuse of discretion “proceeds in two stages.” Tomko, 562 F.3d at 567. First, we ensure that “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, ... failing to consider the § 3553(a) factors, ... or failing to adequately explain the chosen sentence[.]” Id. If a district court’s procedure was correct, we then consider the sentence’s substantive reasonableness. Id. Our review for substantive reasonableness is highly deferential. Id. at 568. We will affirm the sentence “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id.
Plate’s claims of error draw heavily on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). Kimbrough made clear that “sentencing courts may disagree with the Guidelines based on policy.” United States v. Thielemann, 575 F.3d 265, 272 n. 12 (3d Cir.2009) (citing Kimbrough and Spears v. United States, 555 U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009)). In Kimbrough, the Supreme Court held that a sentencing court did not abuse its discretion when it varied downward from the crack cocaine Sentencing Guidelines based on its policy disagreement with those Guidelines over the sentencing disparities between crack and powder cocaine. Kimbrough, 552 U.S. at 110, 128 S.Ct. 558. The Court’s reasoning was based in part on the fact that the crack cocaine Guidelines were largely the product of mandatory minimum sentences dictated by Con*320gress, and were not created by the United States Sentencing Commission on the basis of “empirical data and national experience.” Id. at 109, 128 S.Ct. 558.
In the District Court, Plate analogized the crack cocaine Guidelines at issue in Kimbrough to the child pornography Guidelines at issue here. He argued for a downward variance on the ground that the provisions of U.S.S.G. § 2G2.2, like the crack cocaine Guidelines, are the product of statutory directives, not a reasoned analysis of empirical data and national experience by the Sentencing Commission. On appeal, Plate argues that his sentence was both procedurally and substantively flawed. First, he contends that the District Court committed procedural error by failing to “adequately explain [its] chosen sentence.” Tomko, 562 F.3d at 567. Specifically, he argues that the District Court failed to address his argument that he was entitled to a downward variance based on his Kimbrough analogy. We disagree. The District Court granted Plate a sentence that was well below the Guidelines range. The bottom of Plate’s Guidelines range was six and a half years of prison. After analyzing the sentencing factors of 18 U.S.C. § 3553(a), the District Court imposed a sentence of only three years. This was a downward variance, and a significant one at that. See United States v. Brown, 578 F.3d 221, 226 (3d Cir.2009) (explaining that a variance is a “discretionary change[] to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors”).
To the extent that Plate contends that the District Court failed to address his specific argument for a variance based on Kimbrough, we are not persuaded. At sentencing, the Court engaged in an extensive colloquy with counsel for the government concerning the Guidelines’ “rationale” and “theory” for sentencing individuals such as Plate who possess, but do not produce, child pornography. The District Court clearly recognized its freedom under Kimbrough to impose a below-Guidelines sentence based on policy disagreements with the Guidelines, and in fact exercised that freedom by granting Plate a substantial downward variance after a thorough analysis of the sentencing factors.2
Plate further argues that his sentence was substantively unreasonable under Kimbrough because the District Court employed invalid Guidelines in determining his sentence. He claims that U.S.S.G. § 2G2.2 was “flawed at its inception” because it was “impermissibly” formulated on the basis of statutory directives, not empirical data and national experience, and that the District Court abused its dis*321cretion by using it as a starting point for his sentence.
This argument stretches the Kimbrough decision well past its breaking point. Kimbrough did not hold that it is “imper-missibl[e]” for a Guideline to be formulated based on statutory directives. It held only that when that Guideline is based on statutory directives, as opposed to “empirical data and national experience,” a court may choose to give that Guideline less weight. Kimbrough, 552 U.S. at 109, 128 S.Ct. 558. It did not hold that a sentencing court must vary from the Guidelines under such circumstances; it held only that it is not an abuse of discretion to do so. Id. at 110, 128 S.Ct. 558. Likewise, Kimbrough did not hold that the District Court’s use of a Guideline based on statutory directives to fashion a sentence makes that sentence substantively unreasonable. Where a sentence is otherwise reasonable, “no justification exists [under Kimbrough ] for reversing the District Court [solely] because of its reliance on a currently valid Guideline.” Thielemann, 575 F.3d at 272 n. 12. In short, neither Kimbrough nor anything in this record persuades us that Plate’s sentence is substantively unreasonable. Therefore, we will uphold it. See Tomko, 562 F.3d at 568.
II.
Plate’s final argument is that the District Court committed procedural error by failing to consider his personal history and characteristics in determining his sentence. See 18 U.S.C. § 3553(a)(1). Plate contends that his character and positive attributes warranted a downward variance, and that the District Court erred by failing to explain why it did not agree. As evidence of his good character and positive attributes, Plate cites a letter to the Court, written by Plate’s grandmother and attached as an exhibit to his Sentencing Memorandum. The letter describes Plate as an “attentive grandson” who is “gentle,” “pleasant,” and “respectful to others.” As further evidence of his good character, Plate also cites his steady employment, his relationship with his daughter, and his participation in counseling and other post-offense rehabilitation.
We conclude that the District Court’s analysis of the sentencing factors, including § 3553(a)(1), was “informed and adequate,” and thus the Court committed no error. See Thielemann, 575 F.3d at 271. “A sentencing court does not have to discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.” Tomko, 562 F.3d at 568 (emphasis in original) (internal quotation marks omitted).
Here, the record makes clear that the District Court took Plate’s history and characteristics into account in deciding his sentence. At the sentencing hearing, the Court explicitly acknowledged its duty to consider all of the § 3553(a) factors, including “the character of the Defendant.” Furthermore, the Court acknowledged reading the letter from Plate’s grandmother discussing Plate’s positive characteristics. It heard extensive arguments about Plate’s positive attributes from his lawyer, and a lengthy discussion of Plate’s “characteristics” as revealed by a pre-sentenc-ing psychological exam conducted by Dr. Robert Coufal. The Court clearly read and considered Dr. Coufal’s report. It explicitly relied on Dr. Coufal’s conclusions in announcing the sentence, noting that there was “no evidence that [Plate] is ... a pedophile or is likely to be a pedophile.” The District Court also discussed Plate’s psychiatric background, his sexual preferences, and his sexual impulses during sentencing. He specifically noted that Plate had no “history” of actual sexual contact *322with children. All of this demonstrates that the District Court considered Plate’s personal history and characteristics, and it bears repeating that after considering those characteristics the District Court did grant Plate a substantial downward variance.3
The record “more than adequately demonstrates the Court’s meaningful consideration” of the § 3553(a) factors, including Plate’s history and characteristics. See United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007). Ultimately, Plate’s quarrel with the District Court is not that it failed to consider his personal attributes, but that the Court’s assessment of those attributes did not result in a downward variance that was as dramatic as Plate desired. That is no reason to invalidate a sentence. United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007) (noting that the District Court’s “failure to give mitigating factors the weight a defendant contends they deserve” does not make a sentence unreasonable); Lessner, 498 F.3d at 204-05 (same). See also Tomko, 562 F.3d at 568 (noting that we are “‘highly deferential’ to the sentencing court’s application of the § 3553(a) factors”).
Accordingly, we will affirm the judgment of the District Court.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Even if the District Court had wholly ignored Plate’s Kimbrough argument, this would not have been error. The District Court must consider any non-frivolous argument that is properly presented, has “color-able legal merit,” and has a "factual basis” in the record. United States v. Ausburn, 502 F.3d 313, 329 (3d Cir.2007). Here, the record contains no attempt by Plate to substantiate, through a historical analysis or actual record evidence, his claim that the child pornography Guidelines lack empirical support. Cf. Kimbrough, 552 U.S. at 94-100, 128 S.Ct. 558 (conducting a thorough analysis of the genesis and evolution of the crack cocaine Guidelines before concluding that they did not reflect "empirical data and national experience”); United States v. Grober, 595 F.Supp.2d 382 (D.N.J.2008), appeal docketed, No. 09-1318 (3d Cir. Feb. 5, 2009) (granting a downward variance from the prison term prescribed by the child pornography Guidelines, but on the basis of a voluminous factual record, which included testimony from sentencing experts, concerning the history of and empirical support for those Guidelines). Therefore, Plate's Kimbrough argument lacked a "factual basis” in the record, Ausburn, 502 F.3d at 329, and the District Court was free to disregard it.
. Plate's trial counsel’s recognition of that fact may explain why he conspicuously failed to object at sentencing to the District Court’s now-alleged failure to address the request for a variance.
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11-05-2022
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*324OPINION
SMITH, Circuit Judge.
Plaintiff Eric Lekich appeals from the judgment of the United States District Court for the Eastern District of Pennsylvania entering summary judgment in favor of Defendants and against him on his claims of disability discrimination and retaliation under the Americans with Disabilities Act, Rehabilitation Act, and Pennsylvania Human Relations Act. We will affirm.
I.
Because we write only for the benefit of the parties, we presume familiarity with the facts and recite them only briefly. Eric Lekich is a 2006 graduate of the Municipal Police Officers’ Training Program of Montgomery County Community College. After graduation he interviewed with the Chief of Police of Doylestown Borough and received a conditional offer for a part-time police officer position. The Chief told Lekich that he had to return a physical evaluation form to the Police Department after having it filled out by two physicians, with whom appointments had already been made. The Chief also notified the Municipal Police Officers’ Education and Training Commission (“MPOETC”) that he had given Lekich an offer of employment conditioned on his passing the required tests. MPOETC then scheduled a written examination for Lekich.1
Lekich went to his physical examinations. The doctor performing the vision test indicated on the evaluation form that Lekich lacked normal color perception. Lekich returned the evaluation form to the Doylestown Police Department as he was instructed. A few days later he received a call from the Chief of Police that his conditional job offer was being withdrawn because of the vision test result. Because the conditional offer was withdrawn, the Doylestown Police Department never forwarded a packet on Lekich to MPOETC for processing.
Lekich then contacted MPOETC to inquire about retaking the vision test but was told he had no recourse. He nevertheless saw another doctor to retake the test. This doctor confirmed that Lekich had a color perception problem, but also stated it was minor and, in his opinion, would not interfere with Lekich’s working as a police officer.
Lekich then retained counsel and, through him, sought to have MPOETC either waive the vision requirement or consider the newer vision exam. MPOETC informed counsel that it was authorized only to process applications from police departments. Thus, it could do nothing for Lekich without his having an offer of employment and an application packet sent to MPOETC on his behalf. Lekich sent further information to MPOETC, but it took no further action.
Lekich filed this action seeking legal and equitable relief for Defendants’ alleged discrimination and retaliation against him. His Amended Complaint, after stipulating to the dismissal of two counts only as to one of the Defendants, asserted claims as follows: Count I asserted a claim under *325the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”), against Colonel Jeffrey B. Miller, in his official capacity as Chairman of MPOETC; Count II asserted a claim under the Rehabilitation Act, 29 U.S.C. §§ 701, et seq. (“BA”), against Colonel Miller in his official capacity and against Doylestown Borough; Count III asserted an equal protection claim under 42 U.S.C. § 1983 against Colonel Miller in his official capacity and against Doylestown Borough; and Count IV asserted a claim under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951, et seq. (“PHRA”), against Colonel Miller in his official capacity.
Cross motions for summary judgment followed, and the District Court granted both Defendants’ motions and denied Le-kich’s motion on all Counts. Lekich now appeals. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction under § 1291.
Lekich’s brief on appeal is silent as to his § 1983 claim, and as to all claims against Doylestown Borough. Thus, we consider only the ADA, RA, and PHRA claims, and then only as to Defendant Miller.2
II.
We “exercise plenary review over the District Court’s grant of summary judgment and apply the same standard that the District Court should have applied.” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quotation omitted). 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.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences from the evidence must be drawn in his favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009).
III.
Defendant Miller (now Defendant Pawlowski) is sued only in his official capacity as Chairman of MPOETC. “Official-capacity suits are an alternative way to plead actions against entities for which an officer is an agent.” Koslow v. Commonwealth of Pa., 302 F.3d 161, 178 (3d Cir.2002). Thus, we will refer to the Chairman of MPOETC simply as “MPOETC.”
The ADA prohibits any “covered entity” from discriminating against individuals on the basis of a disability in making employment decisions. 42 U.S.C. §§ 12112(a).3 “The term ‘covered entity’ means an employer, employment agency, labor organization, or joint labor-management committee.” Id. § 12111(2). MPOETC is not any of these things in this context. It is merely a governmental body that certifies that an applicant has or has not met certain preordained guidelines when a police *326department — an employer — directs it to process an application. 37 Pa.Code § 203.15(c); see also 53 Pa. Cons.Stat. § 2164. Thus, MPOETC did not violate the non-discrimination in employment provisions of the ADA because it is not subject to them.
In addition, and only assuming MPOETC is covered by the nondiscrimination in employment provisions of the ADA, we conclude that Lekich’s claims lack merit. A prima facie case of discrimination requires, inter alia, that an adverse employment action be taken against the complainant. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir.2000). None was taken here by MPOETC because Lekich’s offer of employment was withdrawn. Thus, MPOETC had nothing on which to act. We agree with the District Court that Lekich’s ADA discrimination claim fails “because MPOETC was never in a position to make a certification decision regarding [him].”4
As the District Court recognized, Lekich’s retaliation claim “simply re-frame[s] the allegations underlying his claims of unlawful discrimination.” Assuming Lekich can establish a prima facie case of retaliation in violation of the ADA by MPOETC’s refusal to provide him with a reasonable accommodation after he requested it, MPOETC bears the burden of articulating a legitimate, nondiscriminatory reason for its action. Shaner, 204 F.3d at 500. MPOETC argues that its reason for refusing to waive the vision requirement or accept the second opinion on Le-kich’s vision — what Lekich argues would be reasonable accommodations — was that it can only act on an application packet sent to it by a police department that has extended an offer of employment. 37 Pa. Code § 203.15(c). Without this, it had nothing to act on, whether granting or denying the request for an accommodation. Lekich has failed to demonstrate that this reason is pretext, and his claim thus fails.
This reasoning yields the same result for Lekich’s RA and PHRA claims. 29 U.S.C. § 794(d) (declaring that the same standards apply to an RA claim as an ADA claim); Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 n. 3 (3d Cir.2009) (noting that the same analysis controls an ADA claim as a PHRA claim) (quotation omitted).
IV.
We conclude that Lekich has failed to point to a genuine issue of material fact as to whether MPOETC violated the ADA, RA, or PHRA. Thus, we will affirm the judgment of the District Court.
. MPOETC, incorrectly named by Plaintiff, and thus in the caption, as the Municipal Officers’ Educational Training Commission, is an arm of the Pennsylvania State Police and is responsible for setting the minimum standards required of applicants to be police officers within the Commonwealth of Pennsylvania and certifying that an applicant has met them. 53 Pa. Cons.Stat. § 2164(8), (12). It acts on an application for certification only by direction of a police department that has extended an offer of employment to the applicant. 37 Pa.Code § 203.15(c).
. By operation of Federal Rule of Appellate Procedure 43(c), Colonel Frank Pawlowski has been automatically substituted for Colonel Jeffrey B. Miller because he succeeded him to the position of Chairman of MPOETC.
. Because the acts Lekich complains of took place prior to January 1, 2009, MPOETC argues that the Americans With Disabilities Act Amendments Act of 2008 ("ADAAA") is not applicable. Lekich neither cites the amended law in his initial Brief nor has filed a Reply Brief arguing that the ADAAA does apply, despite its effect on the "disability" and "regarded as” provisions of the ADA. See Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 188 n. 17 (3d Cir.2009). Though we have not decided whether the ADAAA is retroactive, id., our disposition of this case would not be affected by the answer to this question.
. Lekich testified in his deposition that he understood he needed a job offer for MPOETC to certify him. Thus, he would have understood that its refusal to certify him was connected to his lack of an offer of employment.
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11-05-2022
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OPINION
SMITH, Circuit Judge.
This case is about missing insurance premium payments. Lincoln General Insurance Co. (“Lincoln General”), an insurance company, never received insurance premium payments from certain policyholders (the “Policyholders”). AMGRO, Inc. (“AMGRO”), an insurance premium financing company, paid the Policyholders’ premiums to David MacGregor Co. (“MacGregor”), the Policyholders’ retail insurance broker, which retained its agreed upon commission and then sent the remaining funds to Northern Financial Group, Inc. (“Northern Financial”), Lincoln General’s wholesale insurance agent1 for the transactions. Under normal circumstances, Northern Financial would then have sent payment to Lincoln General. But the insurance premium payments never arrived at Lincoln General and this litigation ensued. Lincoln General, MacGregor, and MacGregor’s risk management consultant, Mark Grossbard, now seek review of the District Court’s determinations of several motions for summary judgment. After reviewing the record, we conclude that the District Court correctly decided the summary judgment motions and will affirm its judgment.
The District Court had jurisdiction over this case under 28 U.S.C. § 1332(a) and we review its grant of summary judgment under 28 U.S.C. § 1291. We exercise “plenary review over the District Court’s grant of summary judgment.” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.2005) (internal quotation omitted). A court should grant summary judgment “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). In applying that standard, “a court must view *341the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Shuman, 422 F.3d at 146 (internal quotation omitted).
I.
Facts
On September 23, 2003, Lincoln General entered into an agency agreement with Northern Financial that permitted Northern Financial to sell Lincoln General’s commercial trucking insurance.2 Under the agreement, Northern Financial was to inform Lincoln General of (1) insurance binders3 it issued on behalf of Lincoln General and (2) premium financing transactions entered into in connection with Lincoln General policies. Northern Financial entered into an agreement with MacGregor whereby MacGregor would sell insurance on its behalf, and around February 2004, MacGregor began selling Lincoln General insurance for Northern Financial.4 In exchange for selling the insurance, MacGregor received a ten percent commission on premiums generated by its sales.
MacGregor sold Lincoln General insurance to the Policyholders and AMGRO provided insurance premium financing for those transactions. Northern Financial issued insurance binders to the Policyholders and Lincoln General later issued the corresponding policies. MacGregor, as its agreement with Northern Financial provided, retained a ten percent commission on premiums generated by those sales.
AMGRO’s payments to MacGregor on behalf of the Policyholders were made through a Draft Authorization Agreement that permitted MacGregor to issue AMG-RO checks to itself to pay the Policyholders’ insurance premiums. Under normal circumstances, MacGregor would draft payment to itself from AMGRO, subtract its ten percent commission, and then forward the remaining premium payment to Northern Financial. Northern Financial would then forward payment to Lincoln General. This was not what happened, however. Somewhere along the way, the premium payments disappeared and Lincoln General never received them. As a result, Lincoln General cancelled all the Policyholders’ policies for non-payment of premiums.
After Lincoln General cancelled the policies, AMGRO sought a refund from Lincoln General for the premium payments it had made on behalf of the Policyholders. Lincoln General refused to refund any money to AMGRO because it never received the premium payments. This litigation ensued.
Procedural History
On February 1, 2006, AMGRO filed suit against Lincoln General for its refusal to refund the premium payments AMGRO made on behalf of the Policyholders. On August 23, 2006, Lincoln General filed a third-party complaint against Grossbard and MacGregor alleging (1) tortious inter*342ference with contract, (2) unjust enrichment, and (3) civil conspiracy.5
AMGRO moved for summary judgment on its claim against Lincoln General for the premium payments. That motion was granted and Lincoln General was ordered to return the premium payments and pay AMGRO a statutory penalty. N.J. Stat. Ann. § 17:290-4.1 (providing statutory penalty where insurer retains unearned premiums). Grossbard and MacGregor also moved for summary judgment on Lincoln General’s claims of civil conspiracy against Grossbard, tortious interference with contract against MacGregor, and unjust enrichment against both Grossbard and MacGregor. The District Court entered summary judgment in favor of Grossbard on the civil conspiracy and unjust enrichment claims and in favor of MacGregor on the tortious interference with contract claim. It denied MacGre-gor’s motion for summary judgment on Lincoln General’s unjust enrichment claim. Shortly after the District Court decided the summary judgment motions, the parties entered into a Consent Order and Final Judgment (the “Consent Order”). In the Consent Order, the parties clarified the scope of their appeals and the amounts at stake in the litigation.
II.
Lincoln General appeals the statutory penalty awarded to AMGRO and the entry of summary judgment on its tortious interference with contract claim against MacGregor, and its unjust enrichment and civil conspiracy claims against Grossbard. MacGregor cross-appeals the denial of summary judgment on Lincoln General’s unjust enrichment claim against it. Each of these issues will be discussed in ten.
A.
Lincoln General’s first issue on appeal pertains to the statutory penalty awarded to AMGRO under N.J. Stat. Ann. § 17:29C-4.1.6 The District Court held that *343under New Jersey law, Lincoln General must pay a penalty of five percent “of the gross unearned premium,” computed on a monthly basis for each month or part thereof past the final date on which the refund was due. Id. The District Court also looked to N.J. Stat. Ann. § 17:16D-14(a)7 for confirmation that New Jersey law places the obligation of returning unearned insurance premiums following a policy cancellation solely on the insurer.
Lincoln General raises three arguments against the statutory penalty: (1) that the two statutes, N.J. Stat. Ann. § 17:29C-4.1 and N.J. Stat. Ann. § 17:16D-14, do not apply to AMGRO, (2) that AMGRO is equitably estopped from receiving the statutory penalty, and (3) that AMGRO would be unjustly enriched by the statutory penalty because it was not damaged by Lincoln General’s failure to return the insurance premium payments. None of these arguments is availing.
1.
Lincoln General argues that N.J. Stat. Ann. § 17:290-4.1 is inapplicable because it only applies to premiums paid by the insured — not premiums paid by a premium financing company such as AMGRO. This argument fails. While the statute identifies “the insured” as the entity permitted to seek statutory penalties from the insurer, N.J. Stat. Ann. § 17:29C-4.1, an insurance “premium finance company [may] step[ ] in[to] the shoes of the insured for all payments and setoffs[.]” Sheeran v. Sitren, 168 N.J.Super. 402, 403 A.2d 53, 58 (NJ.Super. Ct. Law Div.1979); see also id. at 61 (stating that “unearned premiums ultimately belong to [the] insureds ... or those who stand in their shoes, such as [insurance premium] financing companies”). Here, AMGRO contracted for the right to “any and all unearned premiums ... which may become payable under the [Policyholders’] policies” in its financing agreements with the Policyholders. See, e.g., Qualified Transportation & Logistics Premium Finance Agreement ¶ 1 (assigning AMGRO “any and all unearned premiums”). Thus, AMGRO, standing in the shoes of the Policyholders, was properly permitted to seek the statutory penalty provided in N.J. Stat. Ann. § 17:290-4.1. Sheeran, 403 A.2d at 58; see also id. at 61.
According to Lincoln General, an interpretation of N.J. Stat. Ann. § 17:290-4.1 that permits insurance premium finance companies to seek statutory penalties under that statute renders N.J. Stat. Ann. § 17:16D-14(a) superfluous because those *344companies could always seek relief under N.J. Stat. Ann. § 17:29C-4.1 as agents of the insured. This argument is beside the point. AMGRO’s ability to stand in the shoes of the Policyholders stems not from a statutory interpretation of N.J. Stat. Ann. § 17:290-4.1, but instead from the assignment of rights to the unearned premiums from the Policyholders to AMGRO. See Sheeran, 403 A.2d at 58; A.J. Armstrong Co. v. Janburt Embroidery Corp., 97 N.J.Super. 246, 234 A.2d 737, 743 (N.J.Super. Ct. Law Div.1967) (explaining that “under general principles of law of assignment, the assignee succeeds to all the rights of his assignor”); N.J. Higher Educ. Assistance Auth. v. Carlock, 247 N.J.Super. 471, 589 A.2d 671, 673 (N.J.Super. Ct. Law Div.1991) (same).8
2.
Lincoln General argues that AMG-RO should be equitably estopped from receiving statutory penalties because it enabled Northern Financial to carry out the insurance premium scam by failing to timely notify Lincoln General of its premium financing arrangements with the Policyholders and granting considerable authority to MacGregor to draft checks. According to Lincoln General’s brief, AMGRO “unjustifiably relied upon [Northern Financial] or failed to take the necessary precautions to avoid suffering from [Northern Financial’s] bad acts.” Thus, Lincoln General argues, AMGRO should be punished for its failure to “take the necessary precautions to avoid suffering damage as a result of the bad acts of another party of which it should [have] be[en] aware[.]”
The doctrine of equitable estoppel is “designed to prevent injustice[.]” Knorr v. Smeal, 178 N.J. 169, 836 A.2d 794, 799 (2003). Here, Lincoln General’s agent, Northern Financial, profited from its fraudulent scheme at the expense of Lincoln General and AMGRO. Indeed, most of Lincoln General’s accusations against AMGRO could also be leveled against itself. It, too, failed to sniff out Northern Financial’s fraudulent scheme. In fact, Lincoln General set the fraud in motion by permitting Northern Financial to act as its agent. Under these circumstances, in that AMGRO was duped by a fraudulent scheme, we cannot say that estopping AMGRO’s claim would prevent injustice. See id. Therefore, the doctrine of equitable estoppel is inapplicable.
Lincoln General also argues that it need not reimburse AMGRO for the commissions that MacGregor kept from the sales of insurance policies to the Policyholders. This argument fails for two reasons. First, Lincoln General waived this argument in the Consent Order. It agreed that it “w[ould] not appeal [the] part of the [District] Court’s Opinion and Order concerning [its] obligation to pay AMGRO the unearned premiums for the policies at issue[.]” Consent Order Background ¶ 5; see Keefe v. Prudential Prop. & Cas. Ins. Co., 203 F.3d 218, 222-23 (3d Cir.2000) (explaining waiver in the context of consent judgments). Lincoln General agreed to return the entire amount of the unearned premiums, not the unearned premiums less MacGregor’s commissions. *345Second, even if this argument was not waived, the statute demands fall payment of “gross unearned premiums” by the insurer. N.J. Stat. Ann. § 17:29C-4.1.
3.
Lincoln General argues that the statutory penalty should not apply because AMGRO did not suffer damages from its failure to return the insurance premium payments. Awarding the statutory penalty, Lincoln General argues, would unjustly enrich AMGRO. The text of the statute belies Lincoln General’s assertion that AMGRO must produce evidence of damages to avail itself of the statutory penalty. N.J. Stat. Ann. § 17:290-4.1 (stating that “the insurer shall, as a penalty, ... return to the insured an additional amount equal to 5% of the gross unearned premium computed on a monthly basis for each month or part thereof past the final date on which the refund was due”) (emphasis added). The use of the word “shall” in a statute “normally creates an obligation impervious to judicial discretion,” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (quoting Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 91 L.Ed. 436 (1947)), and Lincoln General produces no compelling authority suggesting that this statute should be interpreted otherwise. Accordingly, Lincoln General’s argument fails because the plain meaning of the statute does not support its interpretation. Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981). In sum, Lincoln General’s arguments against the statutory penalty award are unavailing and we conclude that the District Court properly awarded AMG-RO the statutory penalty.
B.
Lincoln General challenges the District Court’s entry of summary judgment for MacGregor on Lincoln General’s tor-tious interference with contract claim.9 It asserts that MacGregor tortiously interfered with its contract with Northern Financial by issuing unauthorized temporary identification cards. According to Lincoln General, had MacGregor not issued those cards it would have quickly discovered that Northern Financial was not delivering insurance binders and premium payments to it in a timely fashion.
Lincoln General has not shown evidence that MacGregor interfered with its contract with Northern Financial. As the District Court explained, “[e]ven if MacGregor did[ ] as Lincoln General asserts[,] ... such conduct may constitute inappropriate or negligent business practices but it in no way ‘interfered’ with the contract between Northern Financial and Lincoln General.” Moreover, in effect, Lincoln General seeks to hold MacGregor responsible for Northern Financial’s nonpayment of premiums and for this reason, it must fail: “[T]he rule of tortious interference was not meant to upset the rales governing the contractual relationship itself.” Printing Mart-Morristown, 563 A.2d at 38. “Where a person interferes with the performance of his or her own contract, the liability is governed by principles of contract law.” Id. Here, Lincoln General’s allegations are essentially based on Northern Financial’s non-payment of insurance premiums—an issue that is *346“governed by the principles of contract law,” not tort law. Id. In other words, Northern Financial was “interfering] with the performance of [its] own contract” by engaging in its fraudulent scheme. Id. Even if MacGregor interfered with Lincoln General’s contract with Northern Financial, its actions do not rise to the intentional infliction of harm “without justification or excuse” needed to show malice. Velop, Inc., 693 A.2d at 926 (quoting Printing Mart-Morristown, 563 A.2d at 39). Accordingly, we agree with the District Court that Lincoln General’s tortious interference with contract claim cannot survive summary judgment.
C.
Lincoln General also appeals the District Court’s entry of summary judgment for Grossbard on its unjust enrichment claim against him.10 It appears that Lincoln General is arguing that Grossbard was unjustly enriched both as an agent of Northern Financial and in his individual capacity. Under either theory, Lincoln General’s claim fails to survive summary judgment. First, to the extent that Lincoln General’s claim is based on Gross-bard’s actions as a Northern Financial officer, any such claim would be governed by the express contract between Northern Financial and Lincoln General. See C.B. Snyder Realty Co. v. Nat’l Newark & Essex Banking Co., 14 N.J. 146, 101 A.2d 544, 553 (1953); Moser v. Milner Hotels, Inc., 6 N.J. 278, 78 A.2d 393, 393 (1951); Winslow v. Corporate Express, Inc., 364 N.J.Super. 128, 834 A.2d 1037, 1046 (N.J.Super.Ct.App.Div.2003). “In light of this express contract, there is no basis ... for [Lincoln General] to pursue a ... claim for unjust enrichment.” Winslow, 834 A.2d at 1046. As for an unjust enrichment claim against Grossbard in his individual capacity, after examining the record, and in light of Lincoln General’s failure to identify evidence suggesting otherwise, we agree with the District Court’s determination that Grossbard received no benefit from Lincoln General. Grossbard cannot be held liable for unjust enrichment when he received no benefit. VRG Corp., 641 A.2d at 526. Thus, we agree with the District Court that summary judgment on this claim was proper.
D.
Lincoln General also appeals the District Court’s entry of summary judgment for Grossbard on its civil conspiracy claim.11 This claim fails to survive summary judgment because Lincoln General never sets forth any evidence showing that Grossbard and Pisacane entered into an “agreement ... to inflict a wrong against ... another.” LoBiondo, 970 A.2d at 1029. “An unwitting party[, like Gross-bard,] may not be liable under a conspiracy theory.” Banco Popular N. Am. v. Gandi, 184 N.J. 161, 876 A.2d 253, 263 *347(2005). Grossbard’s undisputed testimony shows that he had extremely limited interactions with Pisacane.12 He had almost no knowledge of the day-to-day dealings between MacGregor and Northern Financial.13 Thus, at best, Grossbard was an “unwitting party” to Northern Financial’s fraudulent scheme. See Banco Popular N. Am., 876 A.2d at 263. Lincoln General points to nothing in the record suggesting a conspiratorial agreement between Gross-bard and Pisacane. As such, we agree with the District Court that Lincoln General’s conspiracy claim against Grossbard cannot survive summary judgment.
E.
Having disposed of Lincoln General’s appeal, we now turn to MacGregor’s cross-appeal of the District Court’s denial of its motion for summary judgment on Lincoln General’s unjust enrichment claim against it. MacGregor argues that it lacked a direct relationship with Lincoln General and therefore could not have been unjustly enriched. See Callana v. Oakwood Park Homes Corp., 91 N.J.Super. 105, 219 A.2d 332, 335 (N.J.Super.Ct.App.Div.1966). But MacGregor’s own Statement of Undisputed Material Facts filed in support of its motion for summary judgment states otherwise:
• MacGregor contacted Lincoln General directly when Northern Financial “failed to respond to [its] efforts to procure the final policy [for a Policyholder.]” Statement of Undisputed Material Facts in Support of Mark Grossbard and Bancar Associates, Inc. d/b/a David MacGregor Company’s Motion for Summary Judgment ¶ 107.
• MacGregor and Lincoln General directly communicated to resolve discrepancies in insurance coverage created by Northern Financial’s actions. For example, on February 26, 2005, MacGregor wrote Lincoln General, outlining discrepancies in coverage between Northern Financial’s binders purporting to provide Lincoln General insurance and Lincoln General’s actual insurance policies. Id. ¶ 115. MacGregor asked Lincoln General to “honor the binders issued by [Northern Financial].” Id. “MacGregor [also] ... sent a number of subsequent letters to [Lincoln General] concerning problems with [Northern Financial].” Id. ¶ 117.
• Lincoln General directly contacted MacGregor to inform MacGregor that *348it had not received premium payments from Northern Financial. Id. ¶ 12 1. MacGregor responded by sending Lincoln General copies of its checks to Northern Financial. Id. ¶ 122.
• Lincoln General notified MacGregor that it had cancelled several policies MacGregor procured for its clients through Northern Financial. Id. ¶ 123.
Given these facts, the relationship between Lincoln General and MacGregor was sufficient enough for the unjust enrichment claim against MacGregor to survive summary judgment. Unlike the plaintiff in Callano, Lincoln General repeatedly communicated with MacGregor and both parties recognized that they were in some form of business relationship. See Callano, 219 A.2d at 335. MacGregor expected the Lincoln General policies to be issued to its clients and Lincoln General expected to be paid for those policies. While both companies undoubtedly had relationships with Northern Financial, they also had a relationship with each other that could give rise to an objective expectation that MacGregor should return the commissions it earned in connection with Northern Financial’s fraud. See Insulation Contracting & Supply v. Kravco, 209 N.J.Super. 367, 507 A.2d 754, 760 (N.J.Super.Ct.App.Div.1986). MacGregor’s retention of commissions for sales of policies that were never delivered to the Policyholders could be viewed as the receipt of an unjust benefit. See Callano, 219 A.2d at 334 (“The key words are enrich and unjustly.”) (emphasis in original). Indeed, Lincoln General’s agreement to return all unearned premiums to AMGRO, Consent Order Background ¶ 5, makes MacGre-gor’s retention of the commissions seem unjust. The amount Lincoln General has agreed to pay includes the commissions that MacGregor has retained. In other words, the Consent Order requires Lincoln General to reimburse AMGRO for the cash that MacGregor is retaining as commissions for sales of insurance policies that were never delivered. Any recovery Lincoln General would receive from MacGre-gor would merely offset the amount that it must already pay AMGRO. As such, we agree with the District Court and conclude that denial of summary judgment on this claim was proper.
III.
Lincoln General has failed to show that the statutory penalty awarded to AMGRO was improper. Except for the unjust enrichment claim against MacGregor, Lincoln General has also failed to identify genuine issues of material fact that would permit its claims against Grossbard and MacGregor to survive summary judgment. For these reasons, we will affirm the District Court’s judgment.
. Wholesale insurance agents do not sell directly to the public. Instead, they use retail insurance brokers to communicate with insurance customers.
. Because we write only for the parties, we will concisely recount the facts.
. An insurance binder is a “temporary contract of insurance ... intended to give the applicant protection pending the execution and delivery of a formal written policy.” 16 Williston on Contracts § 49:53 (4th ed.2009).
.MacGregor and Northern Financial had entered into a "Producer Agreement” on October 11, 2002, approximately one year prior to the contract between Northern Financial and Lincoln General. That agreement permitted MacGregor to sell insurance on behalf of Northern Financial. MacGregor's sales of Lincoln General insurance were made under this agreement.
. Northern Financial and its CEO, Richard Pisacane, were also named as defendants in Lincoln General’s third-party complaint. Lincoln General charged Northern Financial with breach of contract and unjust enrichment and Pisacane with fraud, civil conspiracy, and unjust enrichment. On August 8, 2005, Lincoln General had filed a similar complaint in the United States District Court for the Middle District of Pennsylvania against Northern Financial, Pisacane, Gross-bard, and MacGregor. That complaint charged Northern Financial with breach of contract and Pisacane with fraud, civil conspiracy and unjust enrichment. On May 25, 2006, the United States District Court for the Middle District of Pennsylvania entered default judgments against Northern Financial on the breach of contract claim and Pisacane on the fraud claim. On July 14, 2006, the Middle District of Pennsylvania action was transferred to the District of New Jersey and consolidated with the case now before us.
. This section, entitled "Return of unearned premiums; penalty,” states:
Whenever an insurance policy or contract is canceled, the insurer on notice thereof shall return to the insured, within a reasonable time not to exceed 60 days of cancellation or notice, whichever occurs last, or 60 days after the completion of any payroll audit necessary to determine the amount of premium earned while the policy was in force, on a short rate basis the amount of gross unearned premiums paid; except for a policy or contract for private passenger automobile insurance, which amount of gross unearned premium shall be determined on a pro rata basis. In the event that the insurer fails to return the gross unearned premiums to the insured within the period provided for herein, the insurer shall, as a penalty, in addition to the gross unearned premium, return to the insured an additional amount equal to 5% of the gross unearned premium computed on a monthly basis for each month or part thereof past the final date on which the refund was due.
N.J. Stat. Ann. § 17:29C-4.1.
. This section, entitled "Application of unearned premiums,” states:
(a) Whenever a financed insurance contract is canceled, the insurer on notice of such financing shall return whatever gross unearned premiums are due under the insurance contract to the premium finance company for the account of the insured or insureds within a reasonable time, not to exceed 60 days after the effective date of cancellation, or 60 days after the completion of any payroll audit necessary to determine the amount of premium earned while the policy was in force. Such audit shall be performed within 30 days after the effective date of cancellation.
(b) In the event that the crediting of return premiums to the account of the insured results in a surplus over the amount due from the insured, the premium finance company shall refund such excess to the insured provided that no such refund shall be required if it amounts to less than $1.00.
(c)In the event that the premium finance company fails to return the amount due to the insured within the period designated, the company shall, as a penalty, in addition to the amount due to the insured, return to the insured an additional amount equal to 5% of the amount due to the insured computed on a monthly basis for each month or part thereof past the final date on which the refund was due.
N.J. Stat. Ann. § 17:16D-14.
. Lincoln General also argues that it did not receive the notice required under N.J. Stat. Ann. § 17:16D-14(a) for that statute to be invoked by AMGRO. But as the District Court correctly observed, there is no temporal limitation on when notice must be provided. N.J. Stat. Ann. § 17:16D-14(a) (providing that insurer "on notice of ... financing” must return unearned premiums to the premium finance company). Even if notice was not provided under N.J. Stat. Ann. § 17:16D-14(a), the import of that failure on AMGRO’s ability to seek statutory penalties under N.J. Stat. Ann. § 17:29C-4.1 is nil.
. A claim for tortious interference with contractual relationship requires "(1) the existence of the contract!)] (2) interference which was intentional and with malice; (3) the loss of the contract or prospective gain as a result of the interference; and (4) damages.” Velop, Inc. v. Kaplan, 301 N.J.Super. 32, 693 A.2d 917, 926 (N.J.Super.Ct.App.Div.1997) (citing Printing Mart-Morristown v. Sharp Elecs., 116 N.J. 739, 563 A.2d 31, 37-38 (1989)).
. "To establish unjust enrichment, a plaintiff must show both that defendant received a benefit and that retention of that benefit without payment would be unjust.” VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 641 A.2d 519, 526 (1994). "The unjust enrichment doctrine requires that plaintiff show that it expected remuneration from the defendant at the time it performed or conferred a benefit on defendant and that the failure of remuneration enriched defendant beyond its contractual rights.” Id.
. Civil conspiracy requires showing a "combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or an injury upon another, and an overt act that results in damage.” LoBiondo v. Schwartz, 199 N.J. 62, 970 A.2d 1007, 1029 (2009) (internal quotation omitted).
. Grossbard testified during his deposition that he never had business dealings with Pisa-cane prior to Pisacane’s introduction to him by a colleague:
Q: Did you have any form of business relationship [before your colleague introduced you to Pisacane]?
A: No.
Q: Were you ever involved in any business dealings together—
A: No.
Grossbard interacted with Pisacane only "at the very beginning and veiy end” of the relationship between MacGregor and Northern Financial:
Q: Other than Rich Pisacane did you ever deal with anybody else at [Northern Financial]?
A: Well, I never really dealt with Rich except for at the very beginning and very end. In total, Grossbard interacted with Pisacane a handful of times and none of those interactions suggested a conspiratorial agreement between the two individuals.
. Grossbard testified as follows:
Q: Now, during the '03-'04 time period did MacGregor continue to underwrite business for [Northern Financial]?
A: From what I knew then or what I know now?
Q: What you knew then.
A: I didn't know very much then because I don’t get that involved in this aspect of the business.
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OPINION
PER CURIAM.
Bin Chen, a citizen of China, entered the United States in 2004 without valid travel documents. He filed a timely application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He now petitions for review of the Board of Immigration Appeals order upholding the denial of relief.
I
At his first immigration hearing in February 2005, Chen testified that he began practicing Falun Gong in 2001, on the advice of his grandmother. Chen asserted that in May 2002, police officers barged into his home, where he had been practicing Falun Gong with his grandmother and one or two friends.1 Although Chen and his friends were able to escape the police, his grandmother was arrested and detained for ten days. Chen claimed that he went into hiding following the arrest of his grandmother and subsequently fled China. Chen’s father and grandmother remain in China.
Although Chen was able to identify some of the basic principles of Falun Gong and name the meditation exercises that Falun Gong adherents practice, his ability to elaborate on other aspects of Falun Gong was limited. Chen explained that this resulted from his illiteracy. Chen also submitted a letter from his father, which contained an account of the events leading Chen to practice Falun Gong and of the circumstances surrounding the police raid, the grandmother’s arrest, and Chen’s subsequent flight to the United States. Notably, Chen’s father admitted in the letter *350that he was not present when police raided the home and arrested Chen’s grandmother.
The IJ denied Chen’s applications for relief, noting that Chen’s testimony did not demonstrate anything beyond a general understanding of Falun Gong, and that Chen provided insufficient evidence to corroborate the claims that he practices Falun Gong and that he and his family faced persecution in China. Chen appealed, and the BIA remanded the matter so that Chen could have the opportunity to either present corroborative evidence or explain his failure to do so.
The IJ conducted another hearing in May 2007. Chen testified that since his arrival in the United States, he often practiced Falun Gong in a park with a group of about 20 people. He also submitted some photographs of himself practicing Falun Gong exercises in the United States in front of other people, who were presumably other practitioners, and general literature about Falun Gong. However, the photographs did not identify any of the other people depicted as practitioners of Falun Gong. And, as the IJ noted, Chen failed to offer any testimony from others corroborating his practice of Falun Gong, despite the fact that he claimed to practice regularly with other people. Nor did Chen present any new evidence at the second hearing to corroborate the claim that his grandmother had been arrested. The IJ again denied relief, reasoning that Chen failed to provide sufficient evidence to corroborate his claims that he practiced Falun Gong or that his grandmother was arrested. Chen appealed, and the BIA affirmed, agreeing with the IJ’s corroboration analysis.
II
We have jurisdiction over Chen’s petition pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we review the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence, and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). Chen argues that the Agency erred in concluding that he failed to adequately corroborate his claim, and contends that he is entitled to asylum, withholding of removal, and CAT relief. We disagree.
Even when an applicant is considered otherwise credible, a failure to corroborate may be relied on to deny relief when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)). “It is reasonable to expect corroboration where the facts are central to the applicant’s claim and easily subject to verification.” Id. at 192.
Here, the IJ initially faulted Chen for failing to demonstrate that he practiced Falun Gong and for failing to present sufficient evidence of his grandmother’s arrest.2 The BIA remanded the case and *351afforded him the opportunity to present additional evidence to support his claims. Despite having nearly a year between the Board’s decision and his second hearing before the IJ, Chen produced only minimal evidence to corroborate his claims. Specifically, Chen failed to produce any evidence — beyond his father’s letter — that his grandmother was ever arrested. And although Chen submitted some photographs showing him publicly practicing what appeared to be Falun Gong exercises, Chen offered no testimony from his purported fellow practitioners to demonstrate that he actually continued to practice. Nor did he present evidence corroborating his claim that he practiced Falun Gong while in China. It was reasonable for the Agency to require Chen to adequately corroborate his claims, and we agree that Chen’s failure to do so was unreasonable.
Because Chen’s failure to corroborate rendered him ineligible for asylum, we also agree that he was unable to meet the higher standards applicable to applications for withholding of removal and CAT protection.3 See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir.2008) (withholding of removal); Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005) (CAT relief).
Accordingly, we will deny the petition for review.
. At the removal hearing, Chen explained that although his asylum application indicated that there was only one friend present at the time, there were actually two friends there.
. We note that the IJ's February 2005 opinion omitted any discussion of the letter submitted by Chen's father, and simply concluded that Chen “made reference to his grandmother's arrest and her release ten days later, but failed to document that infonnation in order *351to make it credible." A.R. 113. However, the IJ expressly considered the letter on remand, noting that its corroborative value was weak because Chen's father did not witness the police raid. See A.R. 41.
. The Government argues that because Chen provided no substantive argument to the BIA regarding his CAT claim, we lack jurisdiction over his challenge to the BIA's denial of CAT relief. We disagree. A petitioner is deemed to have exhausted all administrative remedies if he raises all issues before the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir.2008). “Indeed, 'so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.’ " Id. (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006)). Here, Chen challenged the IJ’s CAT determination in both his notice of appeal and brief to the BIA, albeit with no additional argument. We therefore conclude that he satisfied the Immigration and Nationality Act's exhaustion requirement. Even if Chen's filings were insufficient to do so, the claim is exhausted because the BIA expressly considered the merits of his request for CAT relief. See id. at 123-24.
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OPINION
PER CURIAM.
Ify Okafor petitions for review of a decision of the Board of Immigration Appeals denying her motion to reopen the immigration proceedings. We will deny her petition for review.
Okafor is a native and citizen of Nigeria. She entered the United States in 1990. In 2004, the Immigration and Naturalization Service (“INS”) issued a notice to appear charging that Okafor was removable because she was present in the United States without having been admitted or paroled. Through counsel, Okafor conceded that she was removable on this basis.
Okafor applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b) and adjustment of status to a lawful permanent resident based upon a petition for an alien relative filed by her husband. The INS had previously denied Okafor’s application for adjustment of status because she had submitted a fraudulent birth certificate and a fraudulent affidavit by her father, who had died before the affidavit was pur*353portedly prepared. Okafor maintained that she should be afforded a waiver under § 212(i) of the Immigration and Nationality Act, which affords discretionary waivers of inadmissibility due to fraudulent documentation. In support of her applications, Okafor and her United States citizen husband, Emmanuel Edobi, testified that Edo-bi would be unable to care for their four minor children, who are also United States citizens, if she is removed due to his medical problems.
The IJ noted that Okafor did not file the application form for a § 212(i) waiver, and stated that, even if she had filed the requisite form, he would have denied her adjustment of status application because any equities did not outweigh the fraud she had committed in providing false documents. The IJ also concluded that Okafor did not show that her removal would result in extreme hardship to Edobi, as required by § 212(i). The IJ also denied Okafor’s application for cancellation of removal because she had not shown the requisite exceptional and extremely unusual hardship to Edobi or her children. See 8 U.S.C. § 1229b(b)(l)(D). The IJ further stated that Okafor was not worthy of discretionary relief because she had submitted fraudulent materials to the INS on two occasions. The IJ also concluded that Okafor had not shown that she is credible. See A.R. at 92-105.
The BIA dismissed Okafor’s appeal. The BIA was troubled by Okafor’s submission of a fraudulent birth certificate and an affidavit ostensibly signed by her father after his death. The BIA agreed with the IJ that Okafor was unworthy of relief as a matter of discretion and that she did not demonstrate eligibility for the relief she sought. See A.R. at 88-89.
Represented by new counsel, Okafor filed a petition for review, arguing that the IJ had erred in stating that hardship to her children was not a consideration in determining whether to grant a waiver, and that the BIA and IJ had erred in failing to consider certain factors when adjudicating her applications for adjustment of status and a waiver of inadmissibility. We dismissed the petition for review because Okafor had not raised these issues on appeal to the BIA. See Okafor v. Attorney General, C.A. No. 06-4794.
One year after the BIA issued its final administrative decision, Okafor moved the BIA to reopen the proceedings, claiming ineffective assistance of her former counsel. Okafor asserted that counsel had failed to raise in the administrative proceedings the issues raised in her petition for review, which resulted in its dismissal. Okafor argued that the 90-day time period for filing a motion to reopen does not apply where an alien has been prejudiced by counsel’s ineffectiveness.
The BIA concluded that Okafor was not prejudiced by counsel’s alleged ineffective assistance because the IJ had concluded that Okafor’s fraudulent conduct precluded a discretionary grant of relief. The BIA also noted that the IJ had found that Okafor did not show the requisite hardship to qualify for relief. The BIA stated that Okafor did not articulate any particular error by counsel and primarily argued that the IJ unfairly balanced the equities of her case. The BIA denied the motion to reopen as untimely.
Represented by new counsel, Oka-for filed the present petition for review. We must first address the Government’s argument in its brief that Okafor has abandoned any challenge to the BIA’s decision because she fails to challenge the basis upon which the BIA denied the motion to reopen — untimeliness. The Government contends that Okafor has never explained why the motion was not filed within 90 *354days of the BIA’s dismissal of her appeal and that she never asserted that she exercised due diligence to warrant equitably tolling her untimely motion.
The BIA, however, did not deny the motion to reopen as untimely based on a lack of due diligence. Okafor argued in her motion to reopen that the 90-day time period for filing the motion did not apply because she was prejudiced by counsel’s ineffective assistance. The BIA disagreed, concluding that Okafor was not prejudiced and that the motion was untimely. In her brief, Okafor disputes this conclusion. Thus, Okafor has not waived a challenge to the BIA’s decision.
Athough she has not waived her challenge to the BIA’s decision, we agree with the BIA that Okafor has not shown that she was prejudiced by counsel’s alleged ineffective assistance. Even if counsel had raised the issues presented in Oka-for’s first petition for review to the BIA, the BIA correctly stated that the IJ and BIA had previously found that Okafor’s fraudulent conduct precluded a discretionary grant of relief and that she had not shown the requisite hardship to qualify for such relief.1 Moreover, Okafor does not contend that any act or omission by counsel caused her to file the motion to reopen after the applicable 90-day period expired. See Mahmood v. Gonzales, 427 F.3d 248, 251-52 (3d Cir.2005) (holding time period for filing a motion to reopen may be equitably tolled due to ineffective assistance of counsel). Thus, the BIA did not abuse its discretion in concluding that Okafor’s motion to reopen was untimely under 8 C.F.R. § 1003.2(c)(2), as it was filed well more than 90 days after the BIA’s final decision.
Accordingly, we will deny the petition for review. The Government’s motion for summary denial of the petition for review is denied.
. In addition, counsel was not ineffective for failing to argue that the IJ should have considered hardship to the children in adjudicating the § 212(i) waiver. Children are not qualifying relatives under the current version of the applicable statute. See 8 U.S.C. § 1182(i). Thus, Okafor's primary claim of deficient performance is without merit. Although the BIA misstated in its decision that the IJ did consider the children’s hardship in connection with the waiver application, that error is of no consequence.
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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/8476754/
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*357OPINION OF THE COURT
CHAGARES, Circuit Judge.
Plaintiff Erik E. Kolar appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing his claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO” or “Act”), Pub.L. No. 91-452, Title IX, 84 Stat. 941 (1970), as amended, 18 U.S.C. §§ 1961-1968, and declining to exercise supplemental jurisdiction over his remaining state-law claims. We will affirm.
I.
We write for the parties’ benefit and set forth only those facts crucial to our analysis. In this procedural posture, we assume as true all well-pleaded facts appearing in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009).
Kolar, a Pennsylvania citizen, is in the business of real estate investment. In 1998, he joined defendant Preferred Real Estate Investments, Inc. (“PREI”) as a shareholder and the company’s president.1 Defendant Michael G. O’Neil founded PREI in the early 1990’s, and at all times relevant here was the corporation’s chairman. PREI’s business involves the acquisition of real property by single-purpose limited partnerships (the “Affiliates”) that are owned by PREI’s principals. The Affiliates are governed by separate (albeit substantially identical) partnership agreements, and they generally derive them working capital from PREI’s principals, on a pro rata basis, in accordance with each principal’s ownership interest.2 PREI generates revenue through the development and management of the Affiliates’ purchased properties.
Kolar alleges that he owns shares in the following six Affiliates named as defendants in this action (the “Defendant Affiliates”); Island View Crossing, L.P. (“Island View”); Lee Park Investors, L.P. (“LPI”); Hamilton-NJ Holdings, L.P. (“Hamilton”); 240 Princeton Avenue Associates, L.P. (“Princeton”); Hunting Fox Associates V, L.P. (“Hunting Fox”); and Rivertown Holdings, L.P. (“Rivertown”). Kolar also owns a limited partnership interest in PRED and a shareholder interest in Preferred Real Estate Developers, Inc., a 1% general partner of PRED. Finally, Kolar owns minority shareholder interests in the various general partners of the Defendant Affiliates.
In 2005, Kolar resigned his position as an officer, director, and employee of PREI and entered into a Separation and Stock Repurchase Agreement and Mutual General Release (“Separation Agreement”) with the company. Under the agreement — which O’Neil executed on PREI’s behalf — Kolar retained his equity interests in the various PREI entities (including the Defendant Affiliates), and continued to be entitled to all rights and benefits thereunder. These entitlements included all rights to profit distributions, return of capital contributions, and future equity interests concerning properties that were subject (or in the process of being made subject) to agreements at the time the Separation Agreement was executed.
In September 2007, Kolar filed a 15-count complaint in the District Court *358against O’Neil, PREI, PRED, and the Defendant Affiliates. He asserted several state-law causes of action against various defendants, and three RICO claims against all defendants. Essentially, the complaint alleges that PREI, PRED, and the Defendant Affiliates — under the control and express direction of O’Neil, and in violation of the Separation Agreement and governing partnership agreements — diverted partnership distributions to which Kolar was entitled into other Affiliates in which he had no or smaller interests. Kolar avers that the defendants fraudulently diverted these funds under pretextual claims that he was obligated to fund “capital calls” in connection with his interests in other Affiliates, and that they charged excessive management fees for several of the Affiliates’ real-estate ventures. Although he identified several suspect transactions in his complaint, one is of central concern here and warrants further explication.
In 2006, Island View — in which Kolar owned an approximate 30% share through his interest in PRED — entered into an agreement to lease office space to the Le-nox Corporation (“Lenox”). Kolar alleges that at the same time the lease agreement (the “Lenox Lease”) was executed, defendants — at O’Neil’s direction — created an entity for the purpose of acquiring another property owned by Lenox; Kolar was not given an ownership interest in this entity. The property, located at 900 Wheeler Way, Langhorne, Pennsylvania (the “Wheeler Way Property”), had an asking price of $10 million. Kolar alleges, however, that Lenox ultimately sold the Wheeler Way Property to the unknown entity for $5.5 million, and in return received from Island View an above-market $4.5 million lease allowance under the Lenox Lease. Consequently, Kolar complains, Island View— the entity in which he had a substantial interest — indirectly funded the discounted purchase of the Wheeler Way Property by an entity in which he had no interest.
Additionally, he asserts that the defendants caused the unknown entity to sell the Wheeler Way Property quickly for $8 million (a $2.5 million profit) and, despite his demand, did not reimburse Island View for the allowance it granted under the Lenox Lease. Kolar asserts that the structure of this transaction deprived him of at least $1.35 million (30% of $4.5 million), not including lost profits on the sale of the Wheeler Way Property.
The remainder of the complaint’s factual allegations regard other transactions undertaken by the Defendant Affiliates and for which Kolar claims he was not properly compensated. For instance, in 2006, LPI sold its primary asset — a property known as Lee Park — to a third party. Kolar alleges that instead of distributing approximately $1.6 million to which he was entitled, the defendants asserted the right to withhold the funds and loan them to other Affiliates. The defendants also allegedly withheld funds from this transaction on the basis that Kolar owed capital-call obligations to other Affiliates. Finally, the complaint alleges that the defendants caused LPI to repay only a fraction of a loan previously made by PRED, further withholding from Kolar distributions owed to him through his interest in that entity.3
These transactions form the basis of Kolar’s state-law claims, and also underpin his three RICO claims, which he asserts under 18 U.S.C. §§ 1962(a), (c) and (d). Briefly, he claims that together, the *359defendants constituted an association-in-fact enterprise engaged in the real estate business, and whose activities included “acquiring and managing properties, disposing of such properties (usually at a profit,) and diverting proceeds resulting from such dispositions otherwise distributable to [Kolar] to his detriment.... ” Compl. ¶ 108. The complaint alleges that defendants repeatedly used the mails and wires to further a fraudulent scheme to divert and misappropriate funds rightly owed to him by virtue of his various partnership interests.
The defendants moved in the District Court to dismiss Kolar’s complaint under Fed.R.Civ.P. 12(b)(6). The District Court granted the motion, holding that Kolar’s RICO claims were legally deficient. Specifically, it found that: (1) the complaint failed to plead an “investment injury” necessary to support a claim under 18 U.S.C. § 1962(a); (2) the alleged enterprise was not “distinct” from the defendant members of the enterprise, undermining Kolar’s claim under 18 U.S.C. § 1962(c); (3) the complaint did not plead a scheme to defraud necessary to maintain a RICO claim under 18 U.S.C. §§ 1962(a) and (c) on a mail and wire fraud theory; and (4) because Kolar’s substantive RICO claims failed, so too did his conspiracy claim asserted under 18 U.S.C. § 1962(d). Joint Appendix (“JA”) 8-14. The District Court then declined to exercise supplemental ju-risdietion over Kolar’s state-law claims, and marked the case closed.4 JA 13. It did not address Kolar’s request to file an amended complaint. JA 16. This timely appeal followed.
II.
RICO provides a private right of action to recover treble damages, attorney’s fees, and costs of suit “for any person injured in his business or property by reason of a violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c). “A common thread running throughout § 1962 is that an injured party must demonstrate that the defendant was engaged in a ‘pattern of racketeering activity.’ ” Tabas v. Tabas, 47 F.3d 1280, 1289 (3d Cir.1995) (en banc). RICO defines “racketeering activity” by enumerating a litany of predicate acts; relevant here, “racketeering activity” includes any act indictable under 18 U.S.C. §§ 1341 and 1343, the federal mail and wire fraud statutes. 18 U.S.C. § 1961(1)(B). A “pattern of racketeering activity,” in turn, “requires at least two acts of racketeering activity.” 18 U.S.C. § 1961(5); see also Tabas, 47 F.3d at 1290.
With this background, we turn to the District Court’s disposition of Kolar’s RICO claims.5
A.
Kolar challenges the District Court’s dismissal of his claim under *360§ 1962(a) for failure adequately to allege an investment injury. Section 1962(a) makes it “unlawful for any person who has received any income derived ... from a pattern of racketeering activity ... to use or invest ... any part of such income, or the proceeds of such income” in any enterprise engaged in interstate commerce. 18 U.S.C. § 1962(a). The “provision was primarily directed at halting the investment of racketeering proceeds into legitimate businesses.... ” Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d Cir.1991). Because the objectives of § 1962(a) are “directed specifically at the use or investment of racketeering income,” it “requires that a plaintiffs injury be caused by the use or investment of income in [an] enterprise.” Id. (quoting Rose v. Bartle, 871 F.2d 331, 358 (3d Cir.1989)); see also Lightning Lube v. Witco Corp., 4 F.3d 1153, 1188 (3d Cir.1993) (“[T]he plaintiff must allege an injury resulting from the investment of racketeering income distinct from an injury caused by the predicate acts themselves.”); Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1411 (3d Cir.1991) (rejecting § 1962(a) as a “basis for liability” because “[t]he [pleaded] injury stems from the allegedly fraudulent activities of [defendants], but is not specifically linked to the use or investment of income in any named enterprise.”).6
Kolar focuses his § 1962(a) claim on the Wheeler Way transaction, described above. He argues that defendants invested the proceeds of their racketeering activity by causing Island View to grant Lenox an unauthorized $4.5 million allowance under the Lenox Lease in exchange for a concomitant discount on the purchase of the Wheeler Way Property. Thus, he asserts that he effectively funded the discount (in part), as Island View’s expected rents would be decreased by $4.5 million over the term of the Lenox Lease (and which were not recouped after the defendants sold the property for an immediate profit of $2.5 million). This, he argues, constituted an “investment injury” sufficient to support his § 1962(a) claim because the diverted funds were effectively “invested” by allowing an unknown entity to purchase the Wheeler Way Property at a substantial discount.
We reject this argument. The harm alleged in the complaint — the rental payments diverted from Island View — is a consequence of the allowance itself, and is not derivative of the uses to which the diverted funds were ultimately put. That the unknown entity later purchased the Wheeler Way Property at a discount equal to the amount misappropriated from Island View is of no moment, for we agree with defendants that the alleged harm had already been inflicted. The nature of Ko-lar’s injury is summarized best in his own brief: “Pursuant to the Island View part*361nership agreement, Mr. Kolar is entitled to certain cash distributions of his share of the partnership’s profits. The reduction in rent payable by Lenox as a result of the ‘allowance’ diminishes Island View’s profits, and accordingly, Mr. Kolar’s distributions.” Kolar Br. at 19. This says nothing of either the investment of the diverted funds or of the purchase and sale of the Wheeler Way Property (for which the diverted funds were used). We must assume as true Kolar’s allegation that the defendants ultimately purchased the Wheeler Way Property in part through an investment of the fraudulently obtained discount, but we conclude that the alleged injury “is not specifically linked to the use or investment of income in any named enterprise.” Kehr Packages, 926 F.2d at 1411; see also Lightning Lube, 4 F.3d at 1189 (noting that where the defendants allegedly misappropriated and reinvested proprietary business information, “the real injury to the plaintiff is the theft of its property — whatever form it is in — and not the investment of that property in an otherwise legitimate business”).
We also find unpersuasive Kolar’s argument that he suffered an investment injury as a result of Island View’s lost opportunity to purchase the Wheeler Way Property at a discount. Because Island View was the entity that granted the allowance under the Lenox Lease, Kolar argues that Island View should have been granted the opportunity to purchase the Wheeler Way Property at a discount. Accordingly, he says, his injury (i.e., the lost investment opportunity) arises directly out of defendants’ misappropriated investment. Were we to indulge this argument, however, every investment of fraudulently obtained funds would fall within the ambit of § 1962(a) — a plaintiff could plead that he or she was injured by virtue of the missed opportunity to make the very investment that defendants made with misappropriated monies. We have previously been loathe to expand the scope of § 1962(a) beyond its clear text. See Brittingham, 943 F.2d at 305 (“If this remote connection were to suffice, the use-or-investment requirement would be almost completely eviscerated.... If plaintiffs’ reinvestment concept were accepted, almost every pattern of racketeering activity by a corporation would be actionable under § 1962(a), and the distinction between § 1962(a) and § 1962(c) would become meaningless.”); Glessner, 952 F.2d at 709 (“[I]f investment injury is construed as broadly as plaintiffs suggest, the distinction between sections 1962(a) and 1962(c) would be blurred. We are unwilling to tamper with the congressional scheme.”). Today we adhere to our precedent counseling against blurring the divide between §§ 1962(a) and (c). Under the facts as pleaded, Kolar’s lost opportunity to invest in the Wheeler Way Property does not constitute an “investment injury” sufficient to support his § 1962(a) claim.7 Addition*362ally, although Kolar argues that “[o]ther examples of ‘investment injuries’ abound in the [cjomplaint,” Kolar Br. at 21, we have reviewed the remainder of his claims, and conclude that he has failed to set forth any injury distinct from that caused by the alleged predicate acts of racketeering activity. The District Court correctly dismissed the § 1962(a) claim.
B.
Section 1962(c) prohibits any person employed by or associated with an enterprise engaged in interstate commerce from conducting or participating in the affairs of the enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962(c). The District Court granted the defendants’ motion to dismiss the § 1962(c) claim on two grounds: (1) that the complaint failed to plead an enterprise distinct from the defendants constituting the enterprise; and (2) that the complaint had failed sufficiently to plead a scheme to defraud necessary to support predicate acts of mail and wire fraud. JA 10-14. We may affirm the dismissal on any basis supported by the record, Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc), and we do so by holding that Kolar has failed adequately to set forth a pattern of racketeering activity.
In order to plead a violation of § 1962(c), Kolar must allege: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, 473 U.S. at 496, 105 S.Ct. 3275; Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.2004). As stated, a pattern of racketeering activity requires at least two predicate acts of racketeering activity, which include indictable offenses under the federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343. See Lum, 361 F.3d at 223; 18 U.S.C. § 1961(5). Those statutory provisions, in turn, prohibit the use of the mail or interstate wires for purposes of carrying out any scheme or artifice to defraud. See Lum, 361 F.3d at 223. “A scheme or artifice to defraud need not be fraudulent on its face, but must involve some sort of fraudulent misrepresentation or omission reasonably calculated to deceive persons of ordinary prudence and comprehension.” Id. (quoting Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 528 (3d Cir.1998) (in turn quoting Kehr Packages, 926 F.2d at 1415)). Stated differently, “[tjhe scheme need not involve affirmative misrepresentation, but the statutory term ‘defraud’ usually signifies ‘the deprivation of something of value by trick, deceit, chicane, or overreaching.’ ” Kehr Packages, 926 F.2d at 1415 (quoting McNally v. United States, 483 U.S. 350, 358, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987) (in turn quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924))) (internal citation omitted). To establish predicate offenses under §§ 1341 or 1343, it is the scheme that must be fraudulent, not necessarily the particular mail or wire transmissions that constitute the offenses. See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d *363345, 364 (3d Cir.2003).8 Finally, to establish a “pattern” of predicate acts, Kolar must allege that the acts are related, and amount to or pose a threat of continued criminal activity. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Tabas, 47 F.3d at 1292.
We are mindful that “RICO is to be read broadly,” Sedima, 473 U.S. at 497, 105 S.Ct. 3275, that §§ 1341 and 1343 have been “expansively construed,” Kehr Packages, 926 F.2d at 1416 (citing United States v. Boffa, 688 F.2d 919, 925 (3d Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983)), and that RICO consequently “may be applicable to many ‘garden-variety5 fraud cases,” Tabas, 47 F.3d at 1296. By the same token, however, “RICO claims premised on mail or wire fraud must be particularly scrutinized because of the relative ease with which a plaintiff may mold a RICO pattern from allegations that, upon closer scrutiny, do not support it.” Western Assocs. Ltd. P’ship v. Market Square Assocs., 235 F.3d 629, 637 (D.C.Cir.2001) (quoting Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12, 20 (1st Cir.2000), cert. denied, 532 U.S. 905, 121 S.Ct. 1228, 149 L.Ed.2d 138 (2001)). Having scrutinized Kolar’s complaint in the light most favorable to him, we conclude that the facts alleged fail to support a RICO claim.
“[S]ince the pattern inquiry must assess whether the defendant’s actions amount to or pose a threat of continued criminal activity, it is often helpful to examine the actions which are alleged to form the basis of criminal activity.” Kehr Packages, 926 F.2d at 1413 (internal citations and quotations omitted). Setting aside for the moment the Wheeler Way transaction, the balance of the complaint sets forth no activity containing any “deceptive elements.” Id. at 1416. Rather, the essence of Kolar’s complaint alleges that defendants have “diverted and/or misappropriated monies ... due and payable” to him under purported claims of contractual right. Compl. ¶¶ 28-29. For instance, the defendants allegedly diverted funds from Kolar, claiming that he owed capital-call obligations in connection with his interests in other Affiliates. Id. ¶¶ 28-29, 47, 79, 122-126. Kolar attempts to characterize these contract-based claims of right as “false” and “fraudulent,” but we are unpersuaded. Granting all inferences in Kolar’s favor, defendants’ alleged conduct — even if wrongful as a matter of contract or other state law — was not fraudulent.
The complaint makes clear that defendants asserted (in the e-mails identified in the complaint) the contractual right to use Kolar’s distributions to satisfy his purported capital-call obligations. Kolar, on the other hand, claims that he “has no such obligation to satisfy capital calls, as is plainly set forth in the Separation Agreement and in the applicable Partnership Agreements.’’ Id. ¶29 (emphasis added). The complaint explicitly alleges elsewhere that — in connection with the capital-call withholdings — defendants “falsely asserted] [their] ... entitlement ” to withhold Kolar’s distributions and “falsely asserted] that Mr. Kolar ‘has an obligation to fund’ ” capital shortfalls. Id. ¶ ¶ 123-127 (emphasis added). These allegations set forth disputes sounding in contract.9 *364Kolar cannot successfully transmute them into RICO claims by simply appending the terms “false” and “fraudulent.” See Lum, 361 F.3d at 226 (finding that defendants’ use of the term “prime rate” was not “reasonably calculated to deceive persons of ordinary prudence and comprehension”); Annulli v. Panikkar, 200 F.3d 189, 200 (3d Cir.1999) (“[T]heft by deception, like a simple breach of contract or intentional interference with contract, is not a predicate act of racketeering activity enumerated in § 1961(1).... We will not read language into § 1961 to federalize every state tort, contract, and criminal law action.”) (footnotes omitted); Kehr Packages, 926 F.2d at 1416 (dismissing claims against a particular defendant because the alleged actions was not reasonably intended to deceive); Flip Mortgage Corp. v. McElhone, 841 F.2d 531, 538 (4th Cir.1988) (“[T]his circuit will not lightly permit ordinary business contract or fraud disputes to be transformed into federal RICO claims.”); Blount Fin. Serv. Inc. v. Walter E. Heller and Co., 819 F.2d 151, 152 (6th Cir.1987) (dismissing RICO act in part because “[t]he fact that the parties take different positions under the contract as to the appropriate prime rate, or the fact that the defendant charged too high a ‘prime rate’ and thereby concealed or refused to disclose what the plaintiff considers the true prime rate called for under the contract, does not give rise to a valid claim for fraud.”); United States v. Kreimer, 609 F.2d 126, 128 (5th Cir.1980) (“[T]he [mail fraud] statute does not reject all business practices that do not fulfill expectations, nor does it taint every breach of a business contract. Its condemnation of a ‘scheme or artifice to defraud’ implicates only plans calculated to deceive.”).10
*365Kolar also claims that the defendants withheld partnership disbursements to which he was entitled for the purpose of loaning these funds to other Affiliates, and that the defendants charged wrongful and excessive fees. Compl. ¶¶46, 55, 59, 66, 75, 122-129. The complaint unequivocally demonstrates, however, that these alleged actions were also taken under the various contractual agreements between the parties. See, e.g., id. ¶¶ 66 (“PREI ... charged a construction management fee of 10%, in violation of paragraph 5(c) of the Separation Agreement”), 124(b) (identifying an e-mail that “falsely asserts PREI’s ... entitlement to withhold approximately $2 million of .... [pjroceeds and to subsequently loan said monies to a variety of partnership in which Mr. Kolar has smaller interests ....”) (emphasis added). These allegations of fraud are deficient for the same reasons as are the capital-call allegations.
Given our discussion, we find a pattern of racketeering activity absent in the complaint. Even accepting, in this procedural posture, that the complaint sufficiently alleged fraudulent activity surrounding the Wheeler Way transaction, that single, finite transaction cannot by itself underpin a pattern of racketeering activity. See Efron, 223 F.3d at 21 (“Taken together, the acts as alleged comprise a single effort, over a finite period of time, to wrest control of a particular partnership from a limited number of its partners. This cannot be a RICO violation.”); see also Western Assocs., 235 F.3d at 637 (“[W]e do not understand the Supreme Court to disparage interpreting RICO’s pattern requirement to guard against finding continuity too easily in the context of a single dishonest undertaking .... ” (quoting Efron, 223 F.3d at 20)); Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir.1989) (where the defendant’s “actions were narrowly directed towards a single fraudulent goal [and] involved a limited purpose,” observing that “if the pattern requirement has any force whatsoever, it is to prevent ... ordinary commercial fraud from being transformed into a federal RICO claim.”).11
*366For the foregoing reasons, we will affirm the District Court’s dismissal of Ko-lar’s § 1962(c) claim.12
C.
After dismissing Kolar’s claims under §§ 1962(a) and (c), the District Court next addressed his conspiracy claim under § 1962(d). That provision prohibits any person from conspiring to violate subsections (a), (b), or (c). 18 U.S.C. § 1962(d). Quoting our summary statement in Lightning Lube v. Witco Corp., 4 F.3d at 1191, that “[a]ny claim under section 1962(d) based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the substantive claims are themselves deficient,” the District Court dismissed the § 1962(d) claim. Kolar argues that this was error because a RICO conspiracy claim may lie in the absence of an actionable substantive RICO claim. Given our discussion above, we agree with the District Court’s disposition.
It is true that we clarified the scope of our Lightning Lube holding in Rehkop v. Berwick Healthcare Corp., 95 F.3d 285, 289 (3d Cir.1996). In Rehkop, although the plaintiff had adequately pleaded a violation of § 1962(c), he failed to allege a redressable injury from the violation, and thus could not recover under § 1964(c). Relying on Lightning Lube, the district court accordingly dismissed the conspiracy claim. Discussing our earlier decision in Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162 (3d Cir.1989), abrogated on other grounds, Beck v. Prupis, 529 U.S. 494, 505-06, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000), we vacated the dismissal. We stated:
The [district] court ... misconstrued our holding in Lightning Lube. There we held that in order to state a violation of section 1962(d) for conspiracy to violate subsection (a), (b), or (c), the plaintiff must establish that the defendants violated (or were going to violate) one of those subsections. The problem in Lightning Lube was that the actions alleged to constitute violations of subsections 1962(a), (b), and (c) were not violations of these subsections, and thus they also failed to serve as the object of a section 1962(d) conspiracy.
Lightning Lube is thus distinguishable. In this case, Rehkop’s allegations state a violation of section 1962(c). The reason he cannot pursue such a claim is that he was not harmed by the section 1962(c) violation. Nonetheless, the defendants’ alleged violation of section 1962(c) can serve as the object of a section 1962(d) conspiracy, and if Rehkop was harmed by reason of the conspiracy, he may pursue a section 1962(d) claim.
Thus, this case is within Shearin’s rule that a plaintiffs allegation that he or she was harmed in furtherance of a conspiracy under 1962(d) states a claim for relief under section 1964(c)....
Rehkop, 95 F.3d at 29013; cf. Efron, 223 *367F.3d at 21 (“A conspiracy claim under section 1962(d) may survive a factfinder’s conclusion that there is insufficient evidence to prove a RICO violation ... but if the pleadings do not state a substantive RICO claim upon which relief may be granted, then the conspiracy claim also fails.”) (emphasis and internal citations omitted).
Given our resolution of Kolar’s §§ 1962(a) and (c) claims above, we conclude that the District Court did not err in dismissing his § 1962(d) claim. Because we agree that Kolar has failed to allege a pattern of racketeering activity, he has consequently failed to establish a substantive violation of §§ 1962(a) or (c). Dismissal of the conspiracy claim was therefore appropriate under Lightning Lube.
III.
Kolar argues that he should have been granted leave to amend his complaint. In his brief opposing the defendants’ motion to dismiss, Kolar requested — in two of 54 footnotes — that in the event the District Court granted the motion, it permit him to amend his complaint. JA 157 n. 5, 172 n. 38. He also requested leave to amend during oral argument on the motion. JA 298. At no time did he supply the District Court with a proposed amended complaint. The District Court did not address Kolar’s request for leave to amend, but instead ordered the clerk to mark the case closed. JA 16.
Relevant here, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2).14 “Amendments, although liberally granted, rest within the sound discretion of the trial court under Fed.R.Civ.P. 15.” Massarsky v. Gen. Motors. Corp., 706 F.2d 111, 125 (3d Cir.1983). Thus, while we would normally review for abuse of discretion, Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000), Kolar argues that because the District Court did not provide an explanation for ignoring his request to amend, its decision is per se an abuse of discretion under Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). True, “[wjhile a District Court has substantial leeway in deciding whether to grant leave to amend, when it refuses this type of request without justifying its decision, this action is ‘not an exercise of its discretion but an abuse of its discretion.’ ” Lake, 232 F.3d at 373 (quoting Foman, 371 U.S. at 182, 83 S.Ct. 227). However, “[n]ot providing a justification for a denial of leave to amend ... does not automatically constitute an abuse of discretion as long as the court’s rationale is readily apparent from the record on appeal.” Id. at 373-74. Accordingly, we have recognized that a plaintiffs “failure to provide a draft amended complaint would be an adequate basis on which the court could deny [his or her] request [to amend].” Id. at 374; see also Fletcher-Harlee, 482 F.3d at 252 (“[W]e *368have held that a failure to submit a draft amended complaint is fatal to a request for leave to amend.... Thus, [in prior cases], we held that a district court need not worry about amendment when the plaintiff does not properly request it.... Here, [plaintiff] has not [submitted a draft amended complaint], and its failure to do so is fatal to its request.”) (citing cases).
Kolar admits that he failed to supply the District Court with a draft amended complaint, but argues that because defendants did not object to the omission, the issue is waived. We disagree. In the absence of a proper application for leave to amend, there was nothing to which defendants could, or were obligated to, object. Cf. Ramsgate Court Townhome Ass’n v. W. Chester Borough, 313 F.3d 157, 161 (3d Cir.2002) (“[Plaintiff] never filed a motion to amend, nor did it provide the district court with a proposed amended complaint. As a consequence, the court had nothing upon which to exercise its discretion.”). The burden to supply the District Coui't with a draft amended complaint rested with the plaintiff; having failed to satisfy this condition precedent, we find that the District Court did not abuse its discretion when it failed to address Kolar’s threadbare request to amend.
IV.
For the foregoing reasons, we will affirm the District Court’s order.
. During the course of this dispute, PREI altered its corporate name. We continue use of PREI herein.
. Defendant Preferred Real Estate Developers, L.P. ("PRED") is a limited partner of each Affiliate. Because many of PREI’s principals have ownership interests in PRED, the Affiliates also generate working capital from those principals (on a pro rata basis) through their ownership shares in PRED.
. Counts III through VI set forth additional breach-of-contract claims against PREI, PRED, Rivertown, Hamilton, and Princeton. These claims involve similar diversions of funds and construction management fees allegedly caused by defendants. See Compl. ¶¶ 52-77. We do not discuss these allegations in detail.
. Kolar has since re-filed his state-law claims in the Court of Common Pleas, Philadelphia County. That action is currently pending.
. The District Court had jurisdiction over Kolar's RICO claims pursuant to 18 U.S.C. § 1964(c) and 28 U.S.C. § 1331. It had supplemental jurisdiction over Kolar's state-law claims pursuant to 28 U.S.C. § 1367. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District Court’s final order is plenary. Atkinson v. LaFayette Coll., 460 F.3d 447, 451 (3d Cir.2006). We must accept all well-pleaded facts as true and draw all reasonable inferences in plaintiff's favor, but we may disregard any legal conclusions. Fowler, 578 F.3d at 210-11 (discussing Ashcroft v. Iqbal, - U.S. -, -, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)). So long as the complaint sets forth a “plausible” claim to relief, defendants’ motion to dismiss must fail. United States Dep't of Transp. ex rel. Arnold v. CMC Eng’g, 564 F.3d 673, 676 (3d Cir.2009); Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008).
. Kolar argues that the Supreme Court's decision in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), undercuts a “use or investment injury” requirement. He is incorrect. “A violation of § 1962(c) ... requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Id. at 496, 105 S.Ct. 3275 (footnote omitted). The Supreme Court in Sedima held that § 1962(c) did not require a separate “racketeering injury” because "the compensable injury necessarily is the harm caused by" conduct meeting the four required elements — what the Court termed "the essence of the violation.” Id. at 497, 105 S.Ct. 3275. For claims asserted under § 1962(a), however, the "essence of the violation” is the investment of racketeering proceeds in an enterprise. Because a plaintiff must have been injured “by reason of” a § 1962(a) violation in order to recover, 18 U.S.C. § 1964(c), Ko-lar must plead and prove injury flowing from that investment of racketeering proceeds in order to state a claim. We have previously rejected arguments identical to Kolar's, see Glessner v. Kenny, 952 F.2d 702, 709 (3d Cir.1991), and we find no cause (nor do we have authority) to change course here.
. Kolar refers us to Lugosch v. Congel, 443 F.Supp.2d 254 (N.D.N.Y.2006), arguing that a misappropriation of partnership opportunities can result in an investment injury for § 1962(a) purposes. We have no quarrel with this general proposition. But in Lugosch and the case upon which it relies, Ideal Steel Supply Corp. v. Anza, 373 F.3d 251 (2d Cir.2004), rev’d on other grounds, 547 U.S. 451, 460-61, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006), the courts permitted a § 1962(a) claim to proceed not simply because a partnership opportunity had been misappropriated, but because the misappropriated funds were invested in enterprises geographically near the plaintiffs', which would presumably siphon their customer base and revenues. The district court in Lugosch specifically described the nature of the investment injury as follows:
[Tjhere is evidence from plaintiffs’ expert ... that plaintiffs have been damaged as a result of defendants’ diversion of potential corporate opportunities, specifically, the di*362version .... of the goodwill and infrastructure developed by the existing mall Partnerships by building adjacent shopping centers, and that plaintiffs may also have been damaged to the extent that stores in S & R centers competed with Partnership Properties and siphoned off their customers.
443 F.Supp.2d at 270-71 (citing Anza, 373 F.3d at 264) (emphasis added); see also Anza, 373 F.3d at 264 ("[T]he complaint alleges that defendants used profits gained from the operation of their ... scheme at National Queens location to fund the opening of the retail outlet in the Bronx near [plaintiffs] outlet in that borough. ... The complaint adequately stated a claim on which can be granted under § 1964(c) for a violation of § 1962(a).") (emphasis added). We decline Kolar's invitation to dilute the investment-injury requirement such that § 1962(a) reaches every misappropriation of a business opportunity.
. Additionally, Kolar's allegation of mail and wire fraud must be pleaded with particularity pursuant to Fed. R. Civ. P 9(b). That is, he must plead either the "date, place or time” of the fraud, or through "alternative means of injecting precision and some measure of substantiation into [his] allegations of fraud.” Lum, 361 F.3d at 224 (quoting Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984)) (internal quotation marks omitted).
. Moreover, the complaint identifies one email in which the defendants stated to Kolar *364that if he wanted to prevent further withhold-ings, "we suggest that the best option for you is to go to court.” Compl. ¶ 123(d). Kolar emphasizes that this statement demonstrates the defendants’ intent to continue in their wrongful conduct. This may be true, but tire statement and the e-mail’s remaining text make explicit that the defendants were actively asserting a contractual right to withhold the funds, and that the threatened conduct was not fraudulent. The e-mail further stated to Kolar that ”[i]n future [sic] if you so desire we can hold back monies from properties you will be receiving distributions [sic] to fund your share of these capital calls. ..." Compl. ¶ 123(c) (emphasis added, corrections in original). The other e-mails identified in the complaint similarly document defendants' claims of right under the various agreements. While mail or wire transmissions need not themselves be fraudulent to constitute predicate racketeering offenses, the e-mails identified in the complaint affirmatively demonstrate that the defendants’ conduct was not "reasonably calculated to deceive a person of ordinary prudence and comprehension.” Kehr Packages, 926 F.2d at 1416 (quoting United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir.1978)).
. We reject Kolar’s attempt to characterize the defendants' activity as "embezzlement.” Although embezzlement falls within RICO's reach, see United States v. Boidi, 568 F.3d 24, 31 (1st Cir.2009), the Supreme Court in Carpenter v. United States reiterated the requirement that an alleged scheme to defraud for mail and wire fraud purposes be accompanied by some form of "trick, deceit, chicane or overreaching.” 484 U.S. 19, 26, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (quoting Hammerschmidt, 265 U.S. at 188, 44 S.Ct. 511). The Court then repeated the definition of embezzlement: ”[T]he fraudulent appropriation to one's own use of the money or goods entrusted to one’s care by another.” Id. (quoting Grin v. Shine, 187 U.S. 181, 189, 23 S.Ct. 98, 47 L.Ed. 130 (1902)) (emphasis added, internal quotation marks omitted). Kolar's attempt fails, therefore, to shoehorn the defendants' activity into the crime of embezzlement, because the offense also requires fraudulent activity, which we find lacking here.
We also reject Kolar’s argument that the complaint adequately set forth predicate mail and wire fraud offenses by virtue of O'Neil’s alleged breach of fiduciary duties arising from his controlling position in the PREI organization. We recently held that a corporate officer's breach of fiduciary duties owed to the corporation may suffice to establish honest services fraud under 18 U.S.C. § 1346 (which *365falls within the reach of the mail and wire fraud provisions). See United States v. McGeehan, 584 F.3d 560, 570-71 (3d Cir.2009). The appellants argued there that “not every breach of an employee's fiduciary duty to his employer constitutes mail or wire fraud," and we did not disagree. Id. at 571 n. 10. We "h[e]ld only that a collateral fiduciary duty can provide the source of the honest services owed under §§ 1341, 1343, and 1346.” Id. We then limited the breadth of our holding in the same discussion: “In order to give rise to criminal liability, however, the deprivation of honest services must have been the result of a 'scheme or artifice ... with the specific intent to defraud.’” Id. (emphasis added). Accordingly, even if O'Neil's conduct constituted a breach of his fiduciary duties to the PREI partners (and in particular, Kolar), his breach — taken under the purported protection of the various partnership agreements — was not the result of a scheme to defraud. Section 1346 therefore offers Kolar no refuge here.
. Further bolstering our conclusion that Ko-lar has failed adequately to plead a pattern of racketeering activity is his allegation that the defendants “quickly sold” the Wheeler Way Property to a third party for a substantial profit. Compl. ¶ 35. Because the continuity prong of the pattern analysis is a "centrally temporal concept," Tabas, 47 F.3d at 1292 (quoting H.J., Inc., 492 U.S. at 241-42, 109 S.Ct. 2893), the speed with which the defendants finalized the Wheeler Way transaction supports our conclusion that a satisfactory RICO pattern has not been alleged. And as we have already noted, see supra note 9, the defendants' tacit threat that they would continue their conduct indefinitely is insufficient to establish open-ended continuity because the threatened continued activity was not fraudulent, and thus not racketeering activity. See id. at 1295 ("If a RICO action is brought before a plaintiff can establish long-term criminal conduct, the 'continuity' prong may still be met if a plaintiff can prove a threat of continued racketeering activity.”) (emphasis added).
. We note that our discussion of the § 1962(c) claim applies with equal force to the § 1962(a) claim as well. See 18 U.S.C. § 1962(a). Given our analysis, we need not pass upon the District Court's alternative bases for dismissing Kolar’s substantive RICO claims.
. In Beck, the Supreme Court rejected our application of the rule announced in Shearin and followed in Rehkop (i.e., that the termination of one's employment (a non-racketeering act) is an injury potentially redressable under RICO’s conspiracy provision). 529 U.S. at 505-06, 120 S.Ct. 1608. The Supreme Court held instead that a plaintiff must allege that he or she was injured by an overt conspiratorial act that is independently wrongful under RICO. Id. The Court expressly left open, however, the distinct issue presented here: whether a § 1962(d) claim may lie in the absence of an actionable claim under §§ 1962(a)-(c). Id. at 506 n. 10, 120 S.Ct. 1608. Thus, although the application of the Shearin rule has been overturned by Beck, the underlying premise remains sound in this *367Circuit: a plaintiff may plead a RICO conspiracy in the absence of an actionable claim under §§ 1962(a)-(c) so long as the complaint complies with Beck and the substantive claims fail only for lack of a causative injury. If the substantive RICO claims fail on the merits, as they do here, Lightning Lube controls.
. We reject out of hand Kolar's argument that he is entitled to amend his complaint under Fed.R.Civ.P. 15(a)(1). While Kolar had the right under that provision to file an amended complaint in response to defendants’ motion to dismiss, see Kelly v. Del. River Joint Comm’n, 187 F.2d 93, 95 (3d Cir.1951), upon the District Court's order granting the motion and dismissing the complaint, amendment under Rule 15(a)(1) no longer remained an option. See id.; Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007).
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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/8476758/
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OPINION
PER CURIAM.
Shah Afridi Nadir petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on September 11, 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. Nadir is a native and citizen of Pakistan. He came to the United States in October 1998 and overstayed his visa. In June 2005, Nadir applied for withholding of removal and protection under the Convention Against Torture (“CAT”). He claimed that, beginning in 1997, he suffered persecution and torture in Pakistan on account of his political opinion due to his longtime membership in the Pakistan People’s Party (“PPP”). Among other things, Nadir claims that he was arrested in March 1997 and detained for one month, during which time he was beaten, tortured with electric shocks, and denied food.
After a hearing in November 2006, the Immigration Judge (“IJ”) denied Nadir’s application. Nadir appealed. On September 11, 2008, the BIA affirmed the IJ’s decision and dismissed the appeal. This timely counseled petition for review followed.
II. Analysis
We generally review only final decisions by the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, because the BIA deferred to several aspects of the IJ’s findings and analysis, we have jurisdiction to review both decisions. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, this Court “must find that the evidence not only supports that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
A.
To qualify for withholding of removal, Nadir was required to demonstrate that he “more likely than not” will face persecution if deported to Pakistan. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Nadir attempted to establish his eligibility through testimony that he suffered past persecution in Pakistan on account of his PPP membership.1 See 8 C.F.R. § 208.16(b) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”). A successful showing of past persecution would have entitled Nadir to a *374rebuttable presumption that he would also face future persecution if removed. See 8 C.F.R. § 208.16(b)(l)(i).
The IJ found Nadir’s testimony to be not credible and denied Nadir’s application for withholding of removal for that reason. The BIA affirmed the IJ’s adverse credibility determination. Nadir argues that the IJ and BIA erred because he established past persecution through credible evidence.
Nadir faces a heavy burden. We have recognized that an IJ is normally in the best position to make a credibility determination and is “uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003) (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985)). We review adverse credibility determinations for substantial evidence. Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d Cir.2004). We will affirm the adverse credibility finding if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Nadir’s credibility must be so strong “that in a civil trial he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
We have closely reviewed the record and conclude that the adverse credibility determination rests upon substantial evidence. Both the BIA and IJ provided numerous specific and cogent reasons for concluding that Nadir lacked credibility, all of which go to the “heart” of his claims.2 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Specifically, the IJ and BIA identified the following inconsistencies and implausibilities within Nadir’s testimony and/or between Nadir’s testimony and documentary evidence:
(1) Nadir claimed to be “Information Secretary” for his village’s branch of the PPP, but Nadir submitted a letter from Saleem Rahman, the president of the PPP for Nadir’s district, which indicated that Nadir was only a “simple member” of the PPP.3 See A.R. 384.
(2) The Rahman letter states that the military regime “was after him to arrest him,” but does not suggest that Nadir was previously arrested, although it would be reasonable to presume that Rahman would have mentioned a prior arrest. A.R. 92 (IJ decision at 6); A.R. 384.
(3) The Rahman letter indicates that the military regime raided Nadir’s home several times for the purpose of finding and arresting him. A.R. 384. Nadir did not mention any raids in his testimony or written statement.
(4) Nadir testified inconsistently about the sequence of events after his im*375prisonment. Specifically, he first testified that he returned home after his release to recover from his injuries. He later testified that he went to Karachi to hide, then boarded a ship, and only later returned home.
In response, Nadir provides a series of conclusory and unsupported arguments proposing that each credibility finding has an alternative explanation that supports Nadir’s claim rather than undermines it.4 However, the Supreme Court has instructed that “[wjhere there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Nadir has not demonstrated that any of the IJ’s findings of fact were clearly erroneous. His contention that there could be other plausible interpretations of the evidence does not undermine the adverse credibility determination.
“An alien’s credibility, by itself, may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc). In this case, the adverse credibility determination dooms Nadir’s claim. Nadir failed to meet the burden of supporting his application for withholding of removal through credible testimony.5 See Mulanga v. Ashcroft, 349 F.3d 123, 133 (3d Cir.2003).
B.
“An applicant for relief on the merits under [the CAT] bears the burden of establishing ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir.2002). To meet this burden, the applicant must present objective evidence, Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003), including evidence of past torture inflicted upon the applicant and relevant information regarding conditions in the country of removal. See Au*376guste v. Ridge, 395 F.3d 123, 134 (3d Cir.2005). A denial of CAT relief, like withholding of removal, is subject to review under the deferential substantial evidence standard. Zubeda, 333 F.3d at 471.
Relying upon our decision in Zube-da, Nadir argues that the IJ and BIA improperly denied his CAT claim by exclusively relying upon the adverse credibility determination. Petitioner’s Brief at 16; Zubeda, 333 F.3d at 476 (“[Credibility for purposes of establishing ... withholding of deportation claims does not defeat [the] ability to ‘meet [the] burden of proof under the Convention Against Torture.”). We disagree. The IJ properly considered “all evidence relevant to the possibility of future torture.”6 8 C.F.R. § 208.16(c)(3).
The IJ expressly discussed Nadir’s documentary evidence of country conditions in Pakistan, including the most recent State Department Report. See A.R. 94 (IJ Decision at 8). Among other things, the IJ found that the report did not indicate that Nadir’s PPP membership would automatically render him subject to imprisonment in Pakistan, and that, although high-ranking members of the PPP might face such risks, Nadir failed to establish that he is more than a “simple member” of the PPP. See id. In addition, the IJ found that, even if Nadir could establish an increased risk of arrest in Pakistan due to his PPP membership, that would not be sufficient to compel a conclusion that he would face torture in Pakistan. Id.
Thus, based upon the record as a whole, the IJ concluded that Nadir’s proffered evidence “does not establish it is more likely than not he would be tortured if removed to Pakistan.” Id. The BIA affirmed the Id’s approach. See A.R. 3 (BIA Decision at 2). We conclude that the decision to deny CAT relief rests upon substantial evidence.
C.
Nadir argues that the IJ violated his Due Process rights because Nadir indicated during the Government’s cross-examination that he was suffering from chest pains. He contends that “this clearly cut Petitioner’s testimony short” and that the IJ should have continued the proceedings rather than concluding them and rendering a decision. The Government responds that Nadir’s claim lacks factual support because, although Nadir initially accepted the Id’s offer to continue the hearing, see A.R. 176-80, when the IJ informed the parties that a continuance would require a de novo hearing,7 both parties agreed to conclude questioning and proceed on the record as it stood. See A.R. 184-85.
We generally lack jurisdiction to review claims that were not administratively exhausted. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1) ]. Nadir never argued to the IJ or to the BIA that he should have been granted a continuance due to his health problems. For instance, in the hearing before the IJ, Nadir’s counsel did not request a continuance. Instead, counsel expressly indicated to the IJ that he had no further questions to ask Nadir. A.R. 185 *377(“JUDGE TO MR. FELIXON: [D]oes respondent’s counsel want to ask any questions on redirect? MR. FELIXON TO JUDGE: No. I will not ask any more questions.”). Thus, not only does the record seriously undermine the factual underpinnings of Nadir’s Due Process claim, it also demonstrates that Nadir did not previously raise the issue.8 Accordingly, we will dismiss this claim for lack of jurisdiction. See Abdulrahman, 330 F.3d at 594-95.
D.
Finally, the IJ concluded that Nadir was statutorily ineligible for voluntary departure because Nadir “has failed to present the Court with a valid passport.” Nadir claims, without record support, that the Government had his passport in its custody but failed to bring it to the hearing. In response, the Government argues that we lack jurisdiction to consider this claim. Under INA § 240B(f) [8 U.S.C. § 1229c(f) ], “[n]o court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure....”
Pursuant to INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D) ], judicial review is not precluded where a petitioner raises a constitutional claim or question of law. Here, Nadir has failed to present a constitutional claim or question of law.9 See, e.g., Karim v. Gonzales, 424 F.3d 109, 111-12 (1st Cir.2005) (no jurisdiction over claim that IJ erroneously concluded that petitioner lacked a valid travel document). We therefore lack jurisdiction over this claim and will dismiss it. INA § 240B(f) [8 U.S.C. § 1229e(f) ].
III. Conclusion
For the foregoing reasons, we will dismiss the petition for review to the extent that we lack jurisdiction over certain claims. We will deny the petition for review in all other respects.
. Nadir provided no documentary evidence to corroborate his claim that he was imprisoned and tortured for one month in Pakistan.
. Prior to May 2005, an adverse credibility determination could only be based upon inconsistencies that went to the "heart” of the individual's claim. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). The REAL ID Act, which applies to Nadir's case, modifies that standard by providing that "credibility determinations may be made 'without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim.' ” INA § 208(b)(l)(B)(iii) [8 U.S.C. § 1158(b)( 1 )(B)(iii) ]. This Court has not yet upheld the new provision. Here, however, the change in the standard is irrelevant to the outcome, because the IJ and BIA both concluded that the credibility problems were sufficiently consequential to meet the pre-REAL ID Act standard. Neither party has disputed that aspect of the credibility determination.
. Apart from his own testimony and statement, the Rahman letter is the only evidence that Nadir submitted to corroborate his individualized persecution claim.
. Perhaps in an effort to show why his proposed explanations lack record support, Nadir argues that he was not permitted to address the credibility findings because "the DHS attorney continued to badger him and the Judge also joined in by telling Petitioner that he would pretermit his applications for relief if he did not stop interrupting." Petitioner's Brief at 15. The record does not support Nadir’s claim that he was prohibited from presenting testimony. To the contrary, the record reflects that Nadir himself repeatedly interfered with the proceedings. Nadir interrupted by providing answers to counsel's questions before the interpreter could complete his translation. See A.R. 163— 66. The IJ repeatedly asked Nadir to allow the interpreter to finish before answering. Because Nadir continued to interrupt, the IJ eventually admonished, "if you do this one more time, I will consider pretermitting this application and deporting you ... Because I will consider this an intentional interference with the Court’s ability to conduct a hearing on your behalf.” A.R. 166; see also A.R. 172 ("Your repeated interruptions of the interpreter are preventing the Court from getting a full translation of what you’re saying.”). The IJ's reasonable efforts to maintain courtroom control by asking Nadir to refrain from persistent interruptions does not undermine the eviden-tiary record or the IJ's conclusions based upon it.
. Nadir contends that his supporting evidence "also supports] a finding that there is a pattern or practice of persecution against PPP members in Pakistan, which further supports his application for withholding of removal....” Petitioner’s Brief at 18. However, Nadir never presented a "pattern or practice” claim to the IJ or BIA. See A.R. 92 (IJ Decision at 6) ("Respondent has not presented any alternative grounds to establish it is more likely than not he will be subject to persecution in Pakistan.”). Because he has raised it for the first time in this Court, the claim is unexhausted and we will dismiss it for lack of jurisdiction. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Abdulrahman, 330 F.3d at 594-95.
. As part of this analysis, the IJ properly considered whether Nadir presented evidence of past torture. Such evidence is relevant to the determination of whether an individual will "more likely than not” be tortured if removed. See 8 C.F.R. § 208.16(c)(3)(i); Zubeda, 333 F.3d at 478. For essentially the same reasons that he did not present credible evidence of past persecution, the IJ concluded that Nadir did not present credible evidence of past torture. This assessment also rests upon substantial evidence.
. The IJ informed the parties that he was visiting from another city and would be unable to appear at the continued hearing; accordingly, if continued, none of Nadir's testimony from that day would be considered and a de novo hearing would be ordered. A.R. 183.
. Generally, constitutional claims are beyond the BIA’s jurisdiction and not subject to the exhaustion requirement. Bonhometre v. Gonzales, 414 F.3d 442, 448 n. 7 (3d Cir.2005). However, there is an exception for claims that could have been corrected by the BIA. Khan v. Att’y Gen., 448 F.3d 226, 236 n. 8 (3d Cir.2006) (IJ's allegedly erroneous denial of a continuance is a procedural error that can be addressed by the BIA on appeal). Nadir’s claim falls within this exception.
. Even if he had attempted to do so, Nadir would not be able to state a colorable constitutional claim based upon the IJ’s alleged error. For instance, in Carcomo v. U.S. Dep't of Justice, 498 F.3d 94, 98 (2d Cir.2007), the Court of Appeals for the Second Circuit considered a claim that a denial of voluntary departure caused a deprivation of Due Process because it was based upon an allegedly erroneous finding of fact. See id. at 98. The Carcomo court concluded that "absent clear proof that the factual basis for an IJ's decision was unambiguously contradicted by the record, a petitioner raises no ‘constitutional claim[] or question!] of law' for us to review.” Id. (We note that, in Nadir's case, the IJ’s finding that Nadir did not present a valid passport is not unambiguously contradicted by the record.) Similarly, the Court of Appeals for the First Circuit has held that a petitioner cannot circumvent the jurisdictional bar by claiming that Due Process required a hearing about the Government's allegedly unfair seizure of the petitioner's passport, because there is no Due Process right to voluntary departure. See Kandamar v. Gonzales, 464 F.3d 65, 69 (1st Cir.2006) (“[T]he IJ succinctly explained that the lack of a passport or any other travel document precluded voluntary departure. No greater hearing or rationale was necessary on the point.”).
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OPINION OF THE COURT
PER CURIAM.
Yi Mei Zhu (lead respondent) and her husband, Jie Jiang (derivative respondent) petition for review of the final removal order issued by the Board of Immigration Appeals (“BIA”) affirming the denial of Zhu’s application for asylum, withholding of removal and protection under the United Nations Convention Against Torture (“CAT”). For the reasons set forth below, we will deny the petition.
We highlight only those facts that are pertinent to our analysis. Zhu and Jiang, natives and citizens of the People’s Republic of China, come from that country’s Fu-jian Province. They entered the United States without valid visas or other entry documents. They conceded removability and requested asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure.
According to their testimony, Zhu and Jiang were married in a traditional ceremony in 1995, but they could not register the marriage with the government because Jiang was underage. Consequently, when Zhu became pregnant in May 1995, she went into hiding to avoid the Fujian Province family planning authorities. In November 1995, the authorities tracked her down and took her to a local hospital against her will where she received an injection to induce labor. She was then transported immediately to the Fouchou City Hospital where she aborted the pregnancy. Zhu was discharged from the hospital three days later. Zhu and Jiang registered their marriage in March 1996 and, in February 1997, Zhu had a son. The family planning authorities forced Zhu to have an intra-uterine device (IUD) inserted after their son’s birth. When Zhu and Jiang decided to have a second child, they fled to avoid China’s coercive family planning policies. Once in the United States, Zhu had her IUD removed. Their second child was born in the United States in 2004.
In support of her allegation that she underwent a forced abortion, Zhu submitted her out-patient medical record from Fouchou City Hospital. The Government submitted a State Department investigative report indicating, among other things, that the contents of the out-patient record were fabricated.1 The Report was based on a certification by the Deputy Director of the Fouchou City Hospital that the patient record number “00025145” was not used in 1995; induced abortions could not be done on an out-patient basis; standard medical terminology was not used in the record; and the doctor or mid-wife whose signature appeared on the document never worked at the hospital. (J.A. at 307.)
The IJ denied asylum relief as untimely and denied withholding of removal and CAT relief because Zhu failed to show that she was entitled to relief. The IJ cited certain evidentiary inconsistencies and contradictions that had “a severe impact on the respondent’s [Zhu’s] credibility.” (J.A. 37.) First, she noted inconsistencies in the testimonies of Zhu’s husband and her sister concerning Zhu’s and Jiang’s arrival in the United States. Second, the IJ found that the investigative report, which indicated that Zhu’s out-patient medical record was fabricated, seriously *380undermined her testimony about a forced abortion in November 1995. The IJ thus concluded that, absent credible evidence, Zhu failed to show that she had suffered past persecution.
The IJ also found that Zhu failed to show a well-founded fear of future persecution based on the State Department’s 2004 Country Report on Human Rights Practices in China (2004 Country Report), which indicated that China allowed couples to have two children if the births were separated by a period of years. Noting that there was a seven-year gap between the births of Zhu’s two children, the IJ concluded that there was insufficient evidence to find that the respondents would be forcibly sterilized in China for having a second child in the United States. The BIA affirmed the IJ’s untimeliness determination as to asylum and her adverse credibility determination as to all claims for relief, concluding that Zhu failed to meet her burden of establishing eligibility for asylum, withholding of removal, and CAT relief.
In most cases, we have jurisdiction to review a final order of removal involving the denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158 provides that no court shall have jurisdiction to review any determination regarding the timeliness of an asylum application and the applicability of the exceptions. See Tarrawally v. Ashcroft, 338 F.3d 180, 184-85 (3d Cir.2003). Under the REAL ID Act, we have jurisdiction to review constitutional claims and questions of law, but not factual or discretionary determinations related to the timeliness of an asylum application. Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006); 8 U.S.C. § 1252(a)(2)(D). Zhu has not raised any legal or constitutional claims regarding the IJ’s determination that her asylum claim was untimely.2 Because we lack jurisdiction to consider her asylum application for timeliness, our review is limited to issues relating to the denial of withholding of removal and relief under the CAT.
To be eligible for withholding of removal, Zhu must demonstrate that it is more likely than not that her life would be threatened in China on account of race, religion, nationality, membership in a particular social group, or political opinion. Tarrawally, 338 F.3d at 186; 8 U.S.C. § 1231(b)(3)(A). To be eligible for CAT relief, Zhu must demonstrate that it is more likely than not that she would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
When, as here, the BIA substantially relies on the IJ’s adverse credibility determination, the Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We may reverse the BIA’s decision only if the record permits but one reasonable conclusion that was not the one reached by the Board. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The IJ’s adverse credibility finding must be upheld unless any reasonable adjudicator would be compelled to conclude to the contrary. Fiadjoe v. Attorney General, 411 F.3d 135, 153 (3d Cir.2005). Only inconsistencies going to the heart of the claims will be deemed to compromise credibility.3 Chukwu v. Attor*381ney General, 484 F.3d 185, 189 (3d Cir.2007).
The IJ’s adverse credibility determination is supported by substantial evidence. Zhu testified that Fujian Province Family Planning authorities forced her to have an abortion very late in her pregnancy in 1995, but she submitted a fabricated outpatient medical record as corroborating proof. Her submission of a false document to support her claim wholly undermined her credibility. For this reason alone, a reasonable factfinder would not be compelled to conclude that the IJ’s adverse credibility finding was erroneous. See Tarrawally, 338 F.3d at 187 (holding that an adverse credibility determination is supported by substantial evidence, even where only some of the stated bases are appropriate).4
Citing Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir.2004),5 she argues that the record lacks any evidence from which a reasonable factfinder could infer that Zhu knew that the out-patient medical record was fabricated. (Pet. Br. at 7-8.) The Government counters that we lack jurisdiction to consider Zhu’s argument because she failed to present it before the BIA. The Court’s jurisdiction is limited under § 242(d)(1) of the INA, to cases where the petitioner “has exhausted all administrative remedies available as of right....” 8 U.S.C. § 1252(d)(1); see Ab-dulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). A petitioner has exhausted his administrative remedies if he raises all issues before the BIA. Based on the notice of appeal and Zhu’s brief before the BIA, we conclude that the BIA was not given sufficient notice of Zhu’s claim that she was unaware that the medical record was falsified. See Lin v. Attorney General, 543 F.3d 114, 121 (3d Cir.2008). Accordingly, we lack jurisdiction to review the unexhausted claim.
Zhu also argues that the IJ erred in giving the investigative report “enormous weight,” thereby failing to consider her credibility based on her testimony and demeanor. We disagree. By crediting the State Department’s investigative report, the IJ necessarily rejected Zhu’s testimony that someone at Fouchou City Hospital gave her the out-patient record personally while she was at the hospital and that she kept the record in her special drawer for important documents in her home in China, where it remained until her relatives retrieved it and sent it to the United States at her request. (J.A. at 279-81.) Even if Zhu’s demeanor was exemplary, faced with such contradictory evidence, the IJ had to accept one piece of evidence and reject the other. Here, there is substantial evidence supporting the IJ’s conclusion to credit the investigative report.6 Hence, *382we are not compelled to conclude that the IJ erred.
With respect to her well-founded fear of persecution claim, we agree with the BIA that Zhu failed to carry her burden of demonstrating that it is more likely than not that she or her husband would be sterilized upon their return to China. The 2004 State Department Country Report for China supports the conclusion that Zhu failed to show that her fear of sterilization was objectively reasonable. See Yu v. Attorney General, 513 F.3d 346, 348-49 (3d Cir.2008); In re C-C-, 23 I. & N. Dec. 899, 901-04 (BIA 2006) (concluding that, without additional evidence to the contrary, recent State Department Country Reports indicate that petitioner’s claimed fear of sterilization was not reasonable). Zhu’s testimony provided no evidence contradicting the Country Report.
Based on the foregoing, we concluded that the IJ’s adverse credibility finding was amply supported by the record, and thus will not upset the IJ’s determination that Zhu was not entitled to withholding of removal or for relief under the CAT. We further conclude that the IJ’s determination that Zhu failed to demonstrate a well-founded fear of persecution was supported by substantial evidence. Accordingly, we will deny the petition for review.
. The Report also verified the authenticity of the "periodic gynecological examination certificate” Zhu submitted to support her claim that her IUD was inserted by Family Planning authorities in China, and noted the examiners’ unsuccessful attempts to authenticate a letter from her husband's employer. (J.A. at 306.)
. The IJ ruled that Zhu failed to show that her asylum application was timely based on “the obvious contradictions between the male’s [Jiang’s] testimony and the testimony of the witness [Bo Yuan Zhu] and the total lack of documentation [like an airplane ticket stub] regarding the arrival of the female respondent [Zhu] into the United States.” (J.A. 37) In her brief, Zhu claimed that the IJ erred as a matter of fact in discrediting the evidence as to timeliness.
. Section 101(a)(3) of the REAL ID Act “applies only to cases where the applicant applied for asylum or other relief after May 11, 2005,” and accordingly does not apply in this *381case. Chukwu v. Attorney General, 484 F.3d 185, 189 (3d Cir.2007).
. Although it does not change the result in this case, we note that, in making an adverse credibility determination, the IJ inappropriately relied on inconsistencies in testimony pertaining to the timeliness of Zhu's asylum application. These inconsistencies clearly do not go to the heart of her past persecution claim.
. In Yeimane-Berhe, the Ninth Circuit held that an IJ's adverse credibility finding based solely on a fraudulent medical record was not supported by substantial evidence where there was no evidence that the petitioner knew that the record was fabricated and nothing else in the record suggested that the petitioner was not credible. 393 F.3d at 911-13.
.Zhu's assertion that the IJ should have taken into account the fact that Chinese officials would not be willing to confirm that persecution had occurred, is belied by the Chinese authorities willingness to confirm the authenticity of the periodic gynecological examination.
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OPINION
PER CURIAM.
Angel M. Pinet appeals pro se from the District Court’s June 24, 2009 order that adjusted his sentence pursuant to 18 U.S.C. § 3582(c)(2). Because we conclude that this appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In August 1998, a federal jury convicted Angel M. Pinet of possession with intent to distribute cocaine and cocaine base, conspiracy to distribute, use of a telephone to commit a drug crime, and interstate travel to promote unlawful activity. He was sentenced to 360 months to life on the first two counts, and forty-eight and sixty month terms on counts three and four, to be served concurrently. Pinet filed a motion for a reduction of his sentence for an offense involving cocaine base pursuant to 18 U.S.C. § 3582(c)(2) in May 2008. On June 24, 2009, the District Court amended Pinet’s offense level and reduced his sentence on counts one and two to 292 months. His original sentence for the remaining charges remains in effect. Pinet filed his notice of appeal on July 14, 2009.1
II.
We have jurisdiction under 28 U.S.C. § 1291. Our review of a District Court’s interpretation of the Sentencing Guidelines is de novo. See United States v. Sanchez, 562 F.3d 275, 277-78 (3d Cir.2009). We review a court’s ultimate determination of a defendant’s motion to reduce sentence under § 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 & n. 2 (3d Cir.2009).
III.
Pinet has not explained how the District Court’s disposition of his § 3582 motion would constitute an abuse of discretion. The District court reduced Pinet’s sentence to 292 months on counts one and two, after determining that the amended guideline range for those counts is 292-365 months. In his § 3582 motion, however, Pinet challenges the sentencing court’s original calculation of his offense level, and bases his calculation of an amended guideline range upon what he sees as errors in that initial calculation. Pinet argues that the sentencing court violated his right to due process under Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) by relying on unreliable and false information contained in the Pre-Sentence Report when it calculated his offense level. These arguments could not be considered by the District Court because they are beyond the scope of § 3582(c)(2). See United States v. McBride, 283 F.3d 612, 614-15 (3d Cir.2002). Such a challenge to the validity of a federal conviction or sentence must be brought in a 28 U.S.C. § 2255 motion. See Davis v. United *384States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).
IV.
For the foregoing reasons, we conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
. The majority of Courts of Appeals hold that motions for re-sentencing under § 3582 are criminal in nature. See, e.g., United States v. Byfield, 522 F.3d 400, 402 (D.C.Cir.2008); United States v. Espinosa-Talamantes, 319 F.3d 1245, 1245-46 (10th Cir.2003); United States v. Arrango, 291 F.3d 170, 171-72 (2d Cir.2002). As such, we will treat Pinet's § 3582 motion as criminal in nature for the purposes of computing his time to appeal. Although the notice of appeal initially appeared to be untimely, see Fed. R.App. P. 4(b)(1), Pinet asserts that he did not receive the District Court's order until July 7, 2009. He includes the envelope in which the order was sent to him by the District Court, on which someone has written "Received 7-7-09" with a signature that is not Pinet's. Thus, Pinet’s notice of appeal, dated July 8, 2009, should be considered filed within the time to appeal. See United States v. Grana, 864 F.2d 312, 316 (3d Cir.1989).
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*385OPINION
SMITH, Circuit Judge.
In March of 2005, a jury convicted Martin Purnell of four counts of distributing more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The United States District Court for the District of Delaware sentenced Purnell to, inter alia, a below guidelines sentence of 138 months of imprisonment on each count, with the terms of each count to run concurrently. On appeal, we affirmed Purnell’s conviction, vacated his sentence, and remanded for resentencing pursuant to Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). United States v. Purnell, 317 Fed.Appx. 118 (3d Cir.2008).
On remand, Purnell’s pre-sentence report was revised using the 2008 Guidelines Manual, which incorporated the two level decrease in § 2D1.1 for crack cocaine offenses required by Amendment 706 of the Sentencing Guidelines. See United States v. Wise, 515 F.3d 207, 219 (3d Cir.2008) (observing that the general effect of Amendment 706 to the United States Sentencing Guidelines was a two level decrease in the offense level). In addition, because Purnell met with law enforcement authorities following remand, he qualified for the safety valve provision in 18 U.S.C. § 3553(f) and U.S.S.G. § 501.2(a), which further decreased his offense level by two points and rendered the mandatory minimum of ten years inapplicable. As a consequence, his total offense level decreased from 34 to 30. Because his criminal history category remained a level I, his guideline range decreased from 151 to 188 months, to 97 to 121 months. At the conclusion of the resentencing proceeding, the District Court sentenced Purnell to, inter alia, 102 months of imprisonment on each of the four counts, with the terms to run concurrently. This timely appeal followed.1
Purnell argues that his sentence is procedurally unreasonable because the District Court failed to fully consider the factors set forth in 18 U.S.C. § 3553(a), particularly the disparity between crack cocaine sentences and powder cocaine sentences. According to Purnell, the District Court failed to consider his argument that the revised guideline range, even as modified by Amendment 706, still reflected a significant disparity between crack and powder cocaine sentences. He further argues that the District Court treated the guideline range as though it was mandatory.
We review a claim that a district court committed procedural error in sentencing under an abuse of discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). “[T]he party challenging the sentence has the burden of demonstrating unreasonableness.” Id.
We conclude that Purnell has failed to meet his burden. The District Court properly calculated the guideline range, noting that it had been revised to reflect the lower offense level applicable to the distribution of crack cocaine pursuant to Amendment 706 and the benefit of qualifying under the safety valve provision. The Court pointed out that there were no objections to the presentence report. Accordingly, consistent with the Supreme Court’s instruction in Gall v. United States, the District Court afforded “both parties an opportunity to argue for whatever sentence they deem[ed] appropriate[.]” 552 U.S. 38, 49, 128 S.Ct. 586, 169 *386L.Ed.2d 445 (2007). The Court also heard the impassioned testimony of Purnell’s pastor, his aunt, and his mother, all of them urging a lenient sentence.
At the conclusion of this testimony, the District Court observed that all but one of the § 3558(a) factors had been accounted for in the guideline analysis, and that the “one factor not included in the calculation [wa]s this defendant’s personal history and characteristics.” Purnell argues that this statement shows that the District Court considered only his personal history and characteristics, instead of all of the § 3553(a) factors, and that it treated the guideline range as though it was mandatory. We disagree in light of the Court’s subsequent remarks. It noted that on remand Purnell’s revised guideline range included the lower offense level applicable to crack cocaine, that Purnell no longer faced the mandatory minimum of ten years, that his personal life was marred by an “unstable home life,” and that he had resorted to distributing drugs and “poisoning his community.” The District Court then exercised its discretion and weighed these circumstances to determine if on resentencing a variance from the “revised advisory guideline range” of 97 to 121 months was warranted, and concluded that a within guidelines sentence was needed to “provide just punishment and adequate deterrence.” This analysis not only demonstrated that the District Court was well aware of the advisory nature of the guidelines, it also complied with the Gall Court’s mandate that the District Court “make an individualized assessment based on the facts presented.” Id. at 50, 128 S.Ct. 586.
We conclude that the District Court’s sentence was procedurally sound. For that reason, we will affirm the District Court’s sentence of 102 months of imprisonment.
. The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on an appeal from a final judgment of conviction and sentence entered in this criminal case on March 5, 2009. A grand jury indicted appellant Ira Bland for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bland filed a motion to suppress evidence, i.e., the firearm, which police officers seized without a warrant. At the evidentiary hearing on the motion the prosecution sought to justify the seizure on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The District Court agreed with the prosecution and thus denied the motion in an order and an accompanying comprehensive memorandum opinion dated September 30, 2008.
After the District Court denied the motion Bland pleaded guilty pursuant to Fed. R.Crim.P. 11(a)(2), preserving his right to appeal from the denial of the motion. The District Court sentenced Bland to 48 months imprisonment to be followed by a three-year term of supervised release. Bland then appealed. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291. The parties agree that we exercise plenary review and inasmuch as the facts in the case are not disputed we, in turn, agree with them. See United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002).
The circumstances of the seizure of the firearm for the most part followed a rather routine pattern but in one respect were unusual. The routine circumstances were that patrol officers received a call from a Wilmington, Delaware, police dispatcher to go to a particular location at which a suspect that the dispatcher described was present. The dispatcher told the officers that a homicide suspect was sitting in a car that the dispatcher described at that location. The dispatcher also advised the officers that Kevin Coverdale was the complainant in the homicide case. When the officers arrived at the designated location of the car they saw a parked vehicle which fit the description that the dispatcher had *388given them with Bland as its sole occupant. Bland was wearing clothes that fit the description that the dispatcher gave of the homicide suspect.
Coverdale, who was at the scene where he was visible in a wide-open area, pointed out Bland and told the police “that’s the guy that shot my son” and “that’s him, that’s him.” Coverdale’s identification was unusual for, as one of the officers explained, Bland could see Coverdale and he, the officer, never before had seen a complainant turn in a suspect out in the open. Thus, Bland knew that Coverdale had implicated him in the shooting to the police.
At the time that the officers approached Bland’s vehicle they asked him to alight from it and he did so. The officers then asked Bland to turn around and put his hands on the roof of the car and he did that as well. Then one of the officers asked Bland if he had anything that could hurt the officer and Bland said that he had a gun. The officers seized the gun and arrested Bland.
The District Court after reviewing the applicable law denied the motion to suppress as it held that:
Based on the evidence and testimony adduced at the hearing, the Court concludes that the Government has established that reasonable suspicion supported the investigative Terry stop and frisk of Mr. Bland. Patrolman DeBona-ventura was instructed to respond to a location known as a high crime area, to investigate an individual alleged to have been involved in a homicide. The location of the suspect and the description of him were provided to police by a caller to 911 who identified himself by name and identified the victim as his son, and the date of his son’s death as December 31. In addition, the caller, Kevin Cover-dale, remained at the location of the suspect until the officers arrived.
App. at 19.
Bland dissects his argument addressing Terry into three parts:
1. Whether, under the totality of the circumstances, the in-person tip provided to the police in this case created reasonable suspicion to support a Terry stop of [him],
2. Whether [he] was searched, prior to being touched, solely because the officers asked him to exit his vehicle, turn around, and place his hands on the car.
3. Assuming the Court decides that the officers searched [him] before actually touching him, whether the officers had reasonable suspicion that [he] was armed to support a Terry frisk.
Appellant’s br. at 2.
We will affirm. It was entirely appropriate for the officers to go to the location of the vehicle when they received the dispatcher’s call. Then, when they arrived at the scene, Coverdale identified Bland to them as the person who had shot his son. At that point it was more than appropriate for the officers to determine if Bland was armed and to investigate the situation further. In the light of the circumstance that Coverdale identified Bland as a killer they would have been foolish if they had not ascertained if Bland was armed. No matter how Bland slices up his argument that the circumstances did not justify his search under Terry, we are in full accord with the District Court’s reasoning, based on its unchallengeable findings of fact, that the search was constitutionally permissible.
The judgment of conviction and sentence entered March 5, 2009, will be affirmed.
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OPINION
SMITH, Circuit Judge.
In June of 1996, Irvington Police Department Officers Rucker, Aleman, and Stouch responded to a noise complaint at approximately 2:00 A.M. at the residence of Marie E. Antoine, the sister of Appellant Max D. Antoine (Antoine). The officers were not welcome. Unfortunately, the matter escalated beyond a verbal confrontation, resulting in Antoine’s arrest and physical removal from the premises. Thereafter, Antoine, his wife, his daughter, and his sister filed a complaint in the United States District Court for the District of New Jersey, alleging that the officers, and others, violated their federal constitutional rights as well as state tort law.1
All of the defendants moved for summary judgment. In a comprehensive decision filed July 12, 2006, the District Court granted summary judgment in favor of the defendants, except for a few of Antoine’s claims against Officers Rucker, Aleman, and Stouch. Antoine’s surviving claims were brought under (1) § 1983, alleging false arrest, false imprisonment, and excessive force in violation of the Fourth Amendment; (2) §§ 1981 and 1983, alleging selective enforcement and an equal protection violation; and (3) state law for assault, battery, and negligence.
Thereafter, the state criminal charges against Antoine arising out of the noise complaint were resolved through New Jersey’s Pretrial Intervention Program. See N.J.S.A. § 2C:43-12. During the court proceeding, Antoine admitted that he resisted arrest, and one of the criminal charges was amended to a charge of fourth degree assault on a police officer. Officers Rucker, Aleman, and Stouch filed a second motion for summary judgment, contending that Antoine’s Fourth Amendment and state law claims were barred pursuant to Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In support of their motion, the officers appended a transcript of Antoine’s state court proceeding during which the criminal charges were amended and he was referred to the Pretrial Intervention Program. Antoine, who was represented by counsel, did not oppose this motion. In a decision dated May 14, 2007, the District Court granted summary judgment in favor of the officers on Antoine’s Fourth Amendment and state law claims based on the doctrine set forth in Heck2 Antoine filed a motion for reconsideration.
On July 9, 2007, Antoine filed a notice of appeal, No. 07-3231. Within days, Officers Rucker, Aleman, and Stouch filed a third motion for summary judgment on the remaining selective enforcement and equal protection claims.
On April 1, 2008, the District Court issued its third opinion. The Court denied Antoine’s motion for reconsideration of the grant of summary judgment on the Fourth Amendment and state law claims, and granted summary judgment in favor of the officers on the remaining selective enforcement and equal protection claims. With regard to the motion for reconsideration, the District Court acknowledged Antoine’s argument that the transcript of the state court plea proceeding and certain mug shots had been fabricated by the officers. It refused to reinstate the Fourth Amendment and state law claims, however, noting that the transcript from Antoine’s state *391court proceeding was part of an exhibit that defense counsel had sworn was a true and accurate copy.
Although the April 1, 2008, decision and order constituted an appealable final order because it ended the litigation on the merits and left nothing for the District Court to do, see Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir.2009), Antoine did not file a notice of appeal. Instead, on May 1, 2008, Antoine filed a motion for reconsideration seeking relief under Federal Rule of Civil Procedure 60(b). In a thorough opinion dated July 15, 2008, 2008 WL 2783347, the District Court considered each of Rule 60(b)’s six grounds for relief and found Antoine’s invocation of them unavailing. Twenty-eight days later, on August 12, 2008, Antoine filed a second notice of appeal, No. 08-3462.
During the pendency of this second appeal, on May 6, 2009, this Court granted the officers’ motion to dismiss Antoine’s initial appeal, No. 07-3231, for lack of jurisdiction. We also explained that the initial notice of appeal was timely with regard to only two interlocutory orders,3 and that an appeal from these types of interlocutory orders did not qualify as a premature appeal that could ripen upon entry of final judgment. Antoine v. Rucker, No. 07-3231 (3d Cir. May 6, 2009) (citing Adapt of Phila. v. Phila. Hous. Auth., 433 F.3d 353, 365 (3d Cir.2006)). We noted that Antoine could have appealed from the District Court’s entry of final judgment in April of 2008, but that no such appeal had been filed.
Because Antoine’s May 1, 2008, motion for reconsideration was not filed within ten days of the District Court’s April 1, 2008, final judgment, the motion did not toll the time period for filing a notice of appeal from that judgment. Fed. R.App. P. 4(a)(4)(A)(vi). The second notice of appeal filed on August 12, 2008, however, was filed within thirty days of the District Court’s denial of the motion for reconsideration. Accordingly, we have jurisdiction under 28 U.S.C. § 1291 over the District Court’s denial of Antoine’s second motion for reconsideration.
“[A]n appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Browder v. Dir. Dep’t of Corrs., of Ill., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); see also Smith v. Evans, 853 F.2d 155, 158 n. 1 (3d Cir.1988) (noting that even though Rule 60(b) preserves the right to appeal, the appeal may bring up only the subject matter of the 60(b) motion and not the underlying case). As a consequence, even though Antoine’s brief argues that the District Court’s grant of summary judgment in favor of the officers was error, we lack jurisdiction to consider that issue. We confine our review to whether the District Court abused its discretion in denying Antoine’s motion for reconsideration under Rule 60(b). See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008) (reiterating that we “review grants or denials of relief under Rule 60(b), aside from those raised under Rule 60(b)(4), under an abuse of discretion standard”) (internal citation omitted).
Antoine’s opening brief completely fails to present any legal argument in support of his contention that the District Court erred by denying his motion for reconsideration. This is a sufficient ground for finding the claim waived. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994) (“An issue is waived unless a party raises it in its opening brief, and for those purposes ‘a passing reference to an issue ... will not suffice to *392bring that issue before this court’ ”); see also Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (observing that an appellant’s failure to present legal argument in support of an issue waives that issue on appeal and the court of appeals need not address it).
Nonetheless, we construe the reference in Antoine’s opening brief to “fraud ... in violation of Court Rule 60(b)” as a challenge to the District Court’s denial of his motion for reconsideration under Rule 60(b)(3) and (6). Under this rule, a court is permitted “to relieve a party from a final judgment” for “(3) fraud ... misrepresentation, or misconduct by an opposing party,” or “(6) any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(3) and (6). The District Court declined to grant Antoine relief, explaining that his charge that the Officers fabricated “the allocution transcript and mug shots” was unsupported by the evidence as explained during the summary judgment proceeding. In addition, the Court concluded that Antoine had failed to establish extraordinary circumstances warranting a grant of relief under Rule 60(b)(6). We find no error in the District Court’s denial of Antoine’s motion for reconsideration. Antoine has not adduced any evidence casting doubt on the authenticity of the state court transcript.
For the reasons set forth above, we will affirm the judgment of the District Court.4
. The District Court exercised federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343, as well as supplemental jurisdiction under 28 U.S.C. § 1367.
. The motion did not seek summary judgment on Antoine’s selective enforcement and equal protection claims, and these claims remained outstanding.
. Neither of the interlocutory orders was the order granting summary judgment on An-loine's Fourth Amendment and state law claims.
. Antoine's notice of appeal referred generally to the plaintiffs, which include his wife, Marie Horatius, and his daughter, Nelchael. At first glance, their appeals seem timely in light of Federal Rule of Appellate Procedure 3(c)(2), which provides that a “pro se notice of appeal is considered filed on behalf of the signer and the signer's spouse and minor children.” But Marie’s and Nelchael's claims became appeal-able with the entry of the District Court’s April 1, 2008, final order resolving Antoine's remaining claims. Because a notice of appeal was never filed within thirty days of that final order, Marie and Nelchael have waived their rights to appeal. As a result, we cannot review those claims in this appeal, which takes issue with the propriety of the District Court's denial of Antoine’s motion for reconsideration.
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11-05-2022
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
This appeal involves a bitter fee dispute between lawyers John Peoples and Howard Langer that was borne out of the settlement of an antitrust class action. See In re Linerboard Antitrust Litig., 321 F.Supp.2d 619 (E.D.Pa.2004). The orders at issue were entered by the District Court on July 15, 2008 (First Order) and October 3, 2008 (Second Order). Langer challenges both orders while Peoples appeals only the Second Order. For the reasons that follow, we find Peoples’s appeal entirely without merit. As for Langer’s appeal, we will affirm in part, vacate in part, and remand the case to the District Court *394for further proceedings consistent with this opinion.
I.
The long and arduous history of this dispute was explained in detail by the District Court in a memorandum accompanying its First Order, In re Linerboard Antitrust Litigation, 2008 WL 2758442 (E.D.Pa. July 15, 2008). Accordingly, we shall recount only the facts and procedural history relevant to these appeals.
The Linerboard class action — which originated from multiple cases filed in Illinois and Pennsylvania — was transferred to the United States District Court for the Eastern District of Pennsylvania, docketed as MDL 1261, and assigned to the Honorable Jan E. DuBois. The Liner-board settlement yielded approximately $60 million in attorneys’ fees, and Judge DuBois appointed Langer as liaison counsel to assist with the fee allocation among class counsel. Liaison counsel was charged with administrative duties such as receiving orders and notices from the Court and circulating them among other counsel in the class, and maintaining files of all documents served upon them so they would be available to all lawyers within the group. See Order of July 14, 2008, In re Linerboard Antitrust Litig., No. 98-05055, 2008 WL 2758167 (E.D.Pa. July 14, 2008) (quoting Judge DuBois’s Practices and Procedures Order of October 4, 2000 ¶ 7); Manual for Complex Litigation § 20.22(Sd) (providing examples of typical liaison counsel duties including “communications between the court and other counsel ... convening meetings of counsel, advising parties of developments in the case, and otherwise assisting in the coordination of activities and positions.”). On June 4, 2004, the District Court amended its order of June 2, 2004 awarding counsel fees to include language retaining jurisdiction over the fee allocation and any related disputes.
On June 23, 2004, Peoples filed a civil action in state court, claiming that Langer breached a contract to pay Peoples a referral fee. After Langer removed the ease to federal court, the parties proceeded to mediation, which resulted in a settlement whereby Peoples agreed to dismiss his case against Langer with prejudice in exchange for $2.94 million, which was paid “from the amount awarded as counsel fees in MDL 1261.” In re Linerboard Antitrust Litig., 2008 WL 2758442, at *3. On July 6, 2004, Judge DuBois entered an order pursuant to the All Writs Act, 28 U.S.C. § 1651 (the All Writs Injunction), enjoining:
all attorneys who participated in any way in MDL 1261 including, but not limited to, John F. Peoples, Esquire ... from taking any further action relating to the allocation of fees in MDL 1261, or the action of liaison counsel in connection therewith, in any court or forum other than the United States District Court for the Eastern District of Pennsylvania.
Id.
Following the settlement, Peoples began making harassing telephone calls to Lan-ger, which prompted Langer to seek relief in federal court. Judge DuBois first signed — but did not enter on the docket— a stipulated temporary restraining order (TRO) that prohibited Peoples from defaming or having any contact with Langer. On September 8, 2005, the TRO was incorporated into an order (the Consent Injunction) which also was signed by Judge Du-Bois, but not entered on the docket.1
*395As time passed, Langer moved the District Court to hold Peoples in contempt for violating the All Writs Injunction and the Consent Injunction. In the First Order, the District Court denied Langer’s motion and sua sponte dissolved both injunctions (as well as the TRO), on the belief that it would soon lose jurisdiction over the ease because the class action was winding down. Following Langer’s motion for reconsideration, the District Court entered the Second Order, which reinstated the All Writs Injunction, but not the Consent Injunction.
On appeal, Peoples claims Judge DuBois erred when he (1) reinstated the All Writs Injunction and (2) failed to recuse himself from the case. In his cross-appeal, Lan-ger claims Judge DuBois erred when he: (1) dissolved the Consent Injunction without considering the correct legal standards; and (2) denied contempt sanctions despite his finding that Peoples violated the All Writs Injunction and the Consent Injunction.
II.
“The standard of review for the authority to issue an injunction under the Anti-Injunction Act and the All Writs Act is de novo.” In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 363 (3d Cir.2001) (citation omitted). We review the terms of an injunction for abuse of discretion, underlying questions of law de novo, and factual determinations for clear error. Id. We review all other issues in the case for abuse of discretion. See SEC v. Warren, 583 F.2d 115, 121 (3d Cir.1978) (motion to dissolve injunction); Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir.1995) (motion for contempt); Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999) (motion for reconsideration); In re Antar, 71 F.3d 97, 101 (3d Cir.1995) (recusal decision) overruled on other grounds by Smith v. Berg, 247 F.3d 532, 534 (3d Cir.2001). A district court “abuses its discretion where its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 141, 147 (3d Cir.2008) (internal citation omitted).
III.
In his appeal from the Second Order, Peoples assigns error to the District Court’s reinstatement of the All Writs Injunction. Peoples argues that the District Court lacked subject matter jurisdiction to enter the All Writs Injunction in the first instance, and that there was no basis on which to reconsider its prior vacatur of the injunction. We reject both arguments.
A.
Under the All Writs Act, district courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions.” 28 U.S.C. § 1651(a). This power is limited by the Anti-Injunction Act, which prohibits a federal court from enjoining state court proceedings “except [1] as expressly authorized by Act of Congress, or [2] where necessary in aid of its jurisdiction, or [3] to protect or effectuate its judgments.” 28 U.S.C. § 2283. The “in aid of jurisdiction” exception applies to preclude parallel state in rem proceedings and also authorizes injunctions in “consolidated multidistrict litigation, where a parallel state court action threatens to frustrate proceedings and disrupt the orderly resolution of the federal litigation.” In re *396Prudential, 261 F.3d at 365 (citation omitted); 17A Charles Allen Wright, ARTHUR R. Miller, Edward H. Cooper, and Vieram David Amar, Federal Practice and Procedure, § 4225 (3d ed.2009). This exception typically is invoked in class actions where proceedings in state court threaten to undermine the pending settlement of a complex MDL case, such as the one involved here. See Grider v. Keystone Health Plan Cent., Inc., 500 F.3d 322, 330 (3d Cir.2007). The relitigation exception — -which authorizes injunctions “to protect or effectuate” judgments — “was designed to permit a federal court to prevent state litigation of an issue that previously was presented to, and decided by, the federal court,” and has also been invoked in class actions. In re Prudential, 261 F.3d at 364. In entering the All Writs Injunction, the District Court relied on both the “in aid of jurisdiction” and relitigation exceptions, stating the injunction was “necessary to effectuate its Order of June 2, 2004 addressing allocation of attorneys’ fees and to prevent disruption of ‘the orderly resolution of the federal litigation.’ ” In re Linerboard Antitrust Litig., 2008 WL 2758442, at *9 (citation omitted).
Peoples emphasizes that he was not a party to the Linerboard action. This fact, while true, is immaterial because the District Court’s authority to enforce its injunctions extends over non-parties. See Pennsylvania v. Porter, 659 F.2d 306, 325 (3d Cir.1981) (power conferred by All Writs Act extends to non-parties who “are in a position to frustrate the implementation of a court order or the proper administration of justice”). Peoples filed his initial fee dispute in state court in June 2004, soon after the District Court ordered Lan-ger to allocate fees among class counsel. Peoples requested that the state court escrow $6 million (10% of the Linerboard fee award) until his claims were resolved. Thus, Peoples’s 2004 suit against Langer directly implicated the res at issue in the MDL case, and threatened to frustrate the orderly allocation of fees pursuant to the District Court’s Orders of June 2 and 4, 2004. Therefore, we hold that the District Court had authority to issue the All Writs Injunction precluding further state court litigation over the allocation of Linerboard fees under both the “in aid of jurisdiction” and the relitigation exceptions to the Anti-Injunction Act.
B.
Peoples next argues that the District Court erred when it granted Langer’s motion for reconsideration and reinstated the All Writs Injunction, contending that his state court case would not interfere with any of the District Court’s orders in Liner-board. We reject Peoples’s argument because his premise is flawed.
A motion for reconsideration may be granted if the movant establishes: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued the prior order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café, 176 F.3d at 677 (citation omitted). Here, the District Court relied on Langer’s submission of new evidence to justify reconsideration of the First Order.
In the memorandum accompanying its Second Order, the District Court found that reinstatement of the All Writs Injunction was necessary because Peoples “intends to relitigate the fee dispute in state court if not enjoined from doing so,” which would disturb the allocation of the Liner-board class counsel fee. In re Linerboard Antitrust Litig., 2008 WL 4461914, at *8 (E.D.Pa. Oct.3, 2008). This conclusion was eminently reasonable in light of the following facts: Peoples told a newspaper reporter in July of 2008 that he was pursuing his rightful share of the Linerboard fees; *397on December 31, 2007, Peoples filed a subsequently-withdrawn complaint against Langer and many other members of class counsel seeking 10% of the total fee; and in September 2008, Peoples sought discovery regarding the allocations made to each member of the Lmerboard class counsel. Given that the $2.94 million already received by Peoples was distributed from the Lmerboard counsel fee pool, Peoples’s attempt to relitigate his fee necessarily threatened the allocation already approved by the District Court and justified reinstatement of the injunction. See In re Prudential Ins. Co. of Am. Sales Practices Litig., (Marra), 314 F.3d 99, 105 (3d Cir.2002) (affirming injunction under All Writs Act where “continued litigation of these claims would ‘unsettle’ what had been thought to be settled” and disrupt procedures approved by the district court).
Peoples contends that the “new evidence” relied on by the District Court in granting the motion to reconsider — that Peoples intended to continue state court litigation against Langer- — could not support a motion for reconsideration because it was already known at the time of the First Order. This argument misstates the District Court’s reasoning. The new evidence was not that Peoples wanted to litigate generally, but rather that the state court action was an attempt to relitigate the allocation of the Lmerboard fee award and not merely a personal dispute with Langer as Peoples had claimed. Because this fact had not been clear to the District Court until it reviewed the new evidence, its reconsideration of the First Order was appropriate.2
IV.
In his cross-appeal, Langer claims the District Court erred when it: (1) vacated the Consent Injunction and (2) refused to impose sanctions despite finding Peoples in contempt of court. We address each argument in turn.
A.
In vacating the Consent Injunction, the District Court noted that Peoples had made only one threatening phone call in the three years since it was imposed. After Langer presented evidence of an additional phone call after the First Order, the Court stated in the Second Order: “[t]o the extent Langer believes the latest message is threatening and violates the law, he should report the incident to the police.” Langer argues that the District Court did not apply the proper legal standard for vacating an injunction.
Rule 60(b) authorizes a court to grant relief from a final judgment if “applying [the order] prospectively is no longer equitable” or for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(5), (6). In Building and Construction Trades Council of Philadelphia and Vicinity, AFL-CIO v. NLRB, we refused to establish “a rigid, pervasively applicable rule” for modification of an injunction “because equity demands a flexible response to the unique conditions of each case.” 64 F.3d 880, 888 (3d Cir.1995). Instead, we noted factors to consider in deciding whether to modify an injunction, including: the circumstances that led to the entry of the injunction and the nature of the conduct sought to be prevented, the length of time since the entry of the injunction, whether the party *398has complied or attempted to comply in good faith with the injunction, and the likelihood that the conduct will recur absent the injunction. Id. The District Court’s conclusion that the Consent Injunction was no longer warranted is supported by the relevant factors.
When the Consent Injunction was entered, Peoples had left a series of ten harassing messages on Langer’s voicemail during the time Langer was allocating the Linerboard fee award. The purpose of the Consent Injunction was “to prevent Peoples from interfering with Langer’s fee allocations in MDL No. 1261,” and it was to remain in effect “until the Court is satisfied that there is no longer a need for it.” In re Linerboard Antitrust Litig., 2008 WL 2758442, at *11, *5. The District Court vacated the Consent Injunction on July 15, 2008 “largely because Peoples had not left another telephone message on Langer’s voicemail since June 29, 2006, and had had no further contact with Lan-ger.” In re Linerboard Antitrust Litig., 2008 WL 4461914, at *9 (internal quotation and citation omitted). In essence, the District Court concluded that the Consent Injunction was no longer necessary. Since the harassing phone calls had substantially diminished, the Linerboard counsel fee allocation was complete, and any remaining dispute between Langer and Peoples was primarily of a personal nature, the District Court did not abuse its discretion when it vacated the Consent Injunction and refused to reinstate it.
B.
On July 5, 2006, Langer filed a motion for contempt, alleging Peoples violated the Consent Injunction by placing a phone call to Langer on June 29, 2006. Langer sought prospective coercive sanctions, to be imposed if and only if Peoples were to subsequently violate the Consent Injunction. In March and May 2007, the Court held hearings on the contempt motion at which Peoples revealed that in 2005 he had written a letter to the Disciplinary Board of the Pennsylvania Supreme Court complaining about Langer’s conduct in the Linerboard fee allocation. Peoples also testified that Langer and Judge DuBois had an improper relationship. Specifically, Peoples testified that Langer and “other individuals” led him to believe that Langer could persuade Judge DuBois to settle the fee dispute in Langer’s favor. Contrary to Peoples’s claim, Langer and the “other individuals” testified unequivocally that they made no such representations to Peoples. On February 22, 2008, Langer filed a second motion for contempt, arguing that Peoples had violated the All Writs Injunction by filing an action in state court regarding the Linerboard fee allocation. This time, Langer sought prospective conditional fines, as well as “reasonable and fair attorneys fees for this motion” and “such further relief as this Court deems appropriate.”
In the First Order, the District Court found Peoples knowingly violated the Consent Injunction by virtue of the June 29, 2006 message he left on Langer’s voice-mail, and knowingly violated the All Writs Injunction on October 15, 2005 when he lodged an unsupported complaint against Langer with the Disciplinary Board. Despite these violations, the District Court declined to impose sanctions, concluding that “the Court’s jurisdiction over this dispute will end upon termination of the class action component of MDL No. 1261.... Thus, a prospective fine would be unenforceable by this Court.” In re Linerboard Antitrust Litig., 2008 WL 2758442, at * 17. Langer argues that refusing to impose sanctions after finding that the Orders had been violated was an abuse of discretion.
“Sanctions for civil contempt serve two purposes: ‘to coerce the defendant into *399compliance with the court’s order and to compensate for losses sustained by the disobedience.’ ” Robin Woods, Inc., v. Woods, 28 F.3d 396, 400 (3d Cir.1994) (quoting McDonald’s Corp. v. Victory Invs., 727 F.2d 82, 87 (3d Cir.1984)). The purpose of a compensatory fíne is to restore the injured party to the position he would have held had the contemnor complied with the injunction. Id. Compensatory sanctions may include the reasonable costs of prosecuting the contempt, including attorneys’ fees. Id. (“[T]he cost of bringing the violation to the attention of the court is part of the damages suffered by the prevailing party”) (quoting Cook v. Ochsner Found. Hosp., 559 F.2d 270, 272 (5th Cir.1977)). A district court has “wide, but not unlimited, discretion in fashioning appropriate compensatory sanctions.” Id. at 401.
The District Court’s authority to enforce the All Writs Injunction and the Consent Injunction continued even after the Liner-board class action terminated. “A district court has the power to enforce an ongoing order against relitigation so as to protect the integrity of a complex class settlement over which it retained jurisdiction.” In re Prudential, 261 F.3d at 367-68. Here, the District Court expressly retained jurisdiction over “all issues relating to the fees and costs of counsel in this action” in its June 4, 2004 Order; under In re Prudential, its authority to enforce the injunction continued even as the class action was winding down. See also Marino v. Pioneer Edsel Sales, Inc., 349 F.3d 746, 753 (4th Cir.2003) (district court had continuing jurisdiction to resolve a dispute as to attorneys’ fees “in order to protect the continued integrity of its order approving fair and reasonable fees in the first instance”). Therefore, the District Court erred when it concluded in the First Order that it would lose jurisdiction over the case once the class action ended. Because the District Court relied on this erroneous conclusion of law in declining to impose civil contempt sanctions, we will vacate that portion of the District Court’s First Order denying Langer’s request for civil contempt sanctions, and remand for reconsideration of Langer’s requests for attorneys fees in connection with past violations.
V.
Finally, we consider Peoples’s appeal from the District Court’s denial of his motion to recuse and his allegations of judicial impropriety against Judge DuBois.3
In the District Court, Peoples argued that Judge DuBois had an “appearance of bias and partiality,” arising from an alleged improper relationship with Lan-ger. On appeal, Peoples cites as evidence of an appearance of bias and partiality: (1) Langer’s dual role as liaison counsel and litigant; (2) Peoples’s testimony that “other individuals” told him Langer had influence over Judge DuBois; and (3) judicial acts taken by Judge DuBois.
Section 455(a) of Title 28 of the United States Code provides that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” If a reasonable observer *400aware of all the circumstances “would harbor doubts about the judge’s impartiality ... then the judge must recuse.” In re Prudential Ins. Co. of Am. Sales Practice Litig. Agent Actions, (Krell), 148 F.3d 283, 343 (3d Cir.1998) (internal quotations and citations omitted). In addition, section 455(b)(1) provides that a judge shall recuse “[wjhere he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Generally, beliefs or opinions requiring recusal “must involve an extrajudicial factor,” U.S. v. Antar, 53 F.3d 568, 574 (3d Cir.1995) (citation omitted), and “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Peoples’s argument, devoid of legal citation, that Langer’s role as liaison counsel automatically created an appearance of partiality because “the Court is by definition biased in favor of its own court-appointed surrogates, and by law gives deference to them,” is baseless. Langer’s role as liaison counsel was to coordinate between class counsel and the Court, and to assist in case management. Langer had no power to advise the Court or mediate disputes, nor was he afforded special access to Judge DuBois. Cf. In re Kensington Int’l Ltd., 368 F.3d 289, 297 (3d Cir.2004). The record contains no evidence of “deep-seated favoritism or antagonism” arising from Langer’s administrative role as liaison counsel.
Peoples also argues that his testimony regarding an inappropriate relationship between Langer and Judge DuBois was adequate to support an appearance of partiality and should not have been discounted by the District Court. Peoples gives his self-serving testimony far too much credit. Not only was the testimony unsupported, but it was directly contradicted by three other attorneys, all of whom testified they never made statements to Peoples regarding an improper relationship between Langer and Judge DuBois. “A charge of partiality must be supported by a factual basis,” and recusal is not required based on “unsupported, irrational, or highly tenuous speculation.” In re United States, 666 F.2d 690, 695, 694 (1st Cir.1981). Peoples’s bare allegations were insufficient to raise objective doubts regarding Judge DuBois’s impartiality.
Finally, Peoples’s argument that Judge DuBois’s imposition of the injunctions and purported delay in determining the contempt motion does not establish an appearance of partiality. A litigant’s dissatisfaction with a judge’s rulings does not support recusal. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.2000).
In sum, we conclude that the allegations Peoples leveled at Judge DuBois at the 2007 contempt hearing were spurious. Even worse, both Peoples and his counsel have continued their quixotic crusade on appeal by including unsupported charges and innuendo in the brief filed in this Court. See, e.g., Brief of Appellee and Cross-Appellant Peoples at 8, 28-30, 35-36, In re Linerboard Antitrust, Nos. 08-3493, 08-4453, 09-4524, 2009 WL 4249009 (3d Cir. Mar. 23, 2009). They persist in pressing such allegations on appeal, despite the fact that Judge DuBois explicitly denied the allegations in his Answer to Peoples’ Petition for Mandamus in October 2007, stating that “[tjhere were no ex parte communications between Langer and the undersigned Judge.... Langer has no *401‘personal clout with Judge DuBois.’ ” R. 897-98.
Whether borne out of desperation or ethical lapses, we do not take lightly Peoples’s attempts to sully the reputation of a Judge of the United States who has, after over twenty years of distinguished service, earned a reputation for honesty and fairness. Such accusations, even when unfounded as they are here, can undermine the coin of the realm of the judiciary: equal justice under the law and the public’s faith therein. See In re Palmisano, 70 F.3d 483, 487 (7th Cir.1995) (“Indiscriminate accusations of dishonesty ... do not help cleanse the judicial system of miscreants yet do impair its functioning— for judges do not take to the talk shows to defend themselves, and few litigants can separate accurate from spurious claims of judicial misconduct.”). Thus, while parties and lawyers certainly have a right to challenge wayward jurists, they must do so based on facts, rather than reckless speculation. As the Pennsylvania Supreme Court well stated, lawyers “ha[ve] an obligation to obtain some minimal factual support before leveling charges that carry explosive repercussions.” Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441, 449 (2000).
VI.
The learned trial judge correctly noted that Peoples’s grievances against Langer have unnecessarily consumed judicial resources for too long. We commend the District Court for the thorough and patient manner in which it has addressed the issues raised in this litigation, particularly in the face of the spurious allegations leveled against it.
For the reasons stated herein, we will affirm the Second Order in its entirety. In addition, we will affirm the First Order in all respects except for the denial of civil contempt sanctions. We leave that issue to the sound discretion of the District Court on remand.
. Ironically, Peoples argues that the Consent Injunction is not enforceable because it was never docketed, even though it was kept confidential to protect his reputation. As stated in the Consent Injunction itself, Peoples expressly waived any argument that the confi*395dential nature of the order impaired its validity. In re Linerboard Antitrust Litig., 2008 WL 2758442, at *5 ("IT IS FURTHER ORDERED that John F. Peoples waives any right to contest the issuance of this Order and the right to contest its effect because it has been issued but not entered.”).
. Reconsideration was also appropriate under the “error of law” prong. In the First Order, the District Court mistakenly held that it would lose jurisdiction to enforce the injunctions once the class action component of Lin-erboard ended, and relied upon this conclusion in vacating the All Writs Injunction. The District Court remedied this error of law in its Second Order.
. Langer claims that Peoples's appeal of the denial of his motion to recuse is not properly before this Court because his notice of appeal was untimely as to the First Order and failed to challenge the District Court's order of October 2, 2008 denying recusal. We disagree because we "construe notices of appeal liberally as covering unspecified prior orders if they are related to the specific order that was appealed from.” Tabron v. Grace, 6 F.3d 147, 153 n. 2 (3d Cir.1993). The Second Order was a reconsideration of the First Order and neither the July 14 Order nor the October 2 Order denying recusal became final until the Second Order was entered.
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OPINION OF THE COURT
PER CURIAM.
Petitioner Eddie Fernando Bernabe-Reyes seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny his application for cancellation of removal under Immigration and Nationality Act (“INA”) § 240A. We will dismiss the petition for review in part and deny it in part.
I.
Bernabe-Reyes is a native and citizen of Ecuador who became a lawful permanent resident of the United States in July 1983. He was three years old at the time. In April 2004, Bernabe-Reyes was convicted of the crime of child abuse, in violation of New Jersey law. In April 2005, after violating his two-year period of probation by contacting the victim of his crime, Ber-nabe-Reyes was sentenced to eighteen months of imprisonment. In August 2005, he was served with a Notice to Appear, charging him with being removable under INA § 237(a)(2)(E)(i), as an alien who at any time after admission has been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.
As relief from removal, Bernabe-Reyes applied for cancellation of removal under INA § 240A [8 U.S.C. § 1229b(a) ]. Following a hearing, the IJ denied Bernabe-Reyes’ application and ordered him removed. The IJ determined that Bernabe-Reyes’ deliberate and knowing violation of his probation and pursuit of the victim in his case outweighed the other positive factors that he presented in support of his application.
Bernabe-Reyes filed an appeal with the BIA and, in a December 2008 decision, the BIA dismissed his appeal. The BIA observed that even though Bernabe-Reyes presented significant positive equities, including his work history and the fact that he has numerous relatives in the United States, those equities did not outweigh the negative factors in his case. The negative factors cited by the BIA were his two prior arrests for possession of marijuana and violating his probation by contacting the victim in his child abuse case, who was a minor at the time. This petition for review followed.
II.
To be eligible for cancellation of removal under 8 U.S.C. § 1229b(a), an alien must demonstrate his statutory eligibility and show that he warrants relief as a matter of discretion. Matter of C-V-T, 22 I. & N. Dec. 7, 10 (BIA 1998). The BIA must weigh the favorable and adverse factors to determine whether, on balance, the “totality of the evidence” indicates that the alien has adequately demonstrated that he warrants a favorable exercise of discretion and a grant of cancellation of removal. Matter of Sotelo-Sotelo, 23 I. & N. Dec. 201, 204 (BIA 2001).
Bernabe-Reyes raises three questions in his petition for review: first, he argues that the BIA failed to “meaningfully consider” the positive equities in his case; second, he claims that the BIA violated his due process rights when it failed to observe several important positive equities in the record before rendering a decision; and third, he argues that the BIA departed from its decision in Matter of Arreguin *404De Rodriguez, 21 I. & N. Dec. 38 (BIA 1995), when it considered his rehabilitation factor as a prerequisite to a grant of relief.
We agree with the Government that we lack jurisdiction to consider Ber-nabe-Reyes’ first claim that the BIA failed to meaningfully consider the equities in the case. We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252(a)(1). However, the INA states that “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)®. Notwithstanding, we retain jurisdiction to review constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
Bernabe-Reyes argues that the BIA did not meaningfully consider the positive equities in the case, while giving substantial consideration to the negative factors. In making this argument, however, Bernabe-Reyes challenges only the weight given to the evidence, not the legal standard that the BIA employed in reaching its decision. Such a claim challenges an exercise of the BIA’s discretion over which this Court does not have jurisdiction. See Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007).
The Government also argues that we lack jurisdiction to review Bernabe-Reyes’ due process claim in which he avers that the BIA entirely failed to consider several of his most compelling positive equities before rendering a decision. The Government argues that Bernabe-Reyes is merely recasting his challenge to the BIA’s discretionary determination as a constitutional claim so that we may assert jurisdiction. To the extent that the claim challenges the weight the BIA gave to the equities in the case as a matter of discretion, we agree that we lack jurisdiction to consider it. However, we read Bernabe-Reyes’ brief to claim that the BIA ignored certain positive equities altogether before engaging in the discretionary balancing of all of the factors in the case. Because Bernabe-Reyes appears to argue that the BIA departed from the legal standard for determining cancellation of removal as set forth in Matter of Sotelo-Sotelo by failing to observe all of the factors before it prior to rendering a discretionary decision, we retain jurisdiction over the claim.1
The claim is without merit, however. As mentioned, Bernabe-Reyes claims that the BIA ignored several compelling positive equities in the record. These include the extreme hardship that deportation would cause his grandmother for whom he provides around-the-clock medical care, the fact that he serves as a surrogate father to his half-siblings and provides financial support for his mother, that he has filed federal income taxes, and that he knows almost nothing about Ecuador and has no family there. However, a review of the BIA’s decision shows that it did consider those equities before rendering a decision — “[t]he respondent has significant positive equities like long residence in the United States that began at a young age, work history, and several close relatives who are lawful permanent residents or citizens of the United States. The respondent also appears to be instrumental to caring for his grandmother, who suffered a stroke.” (A.R. 4 (internal record citations omitted).) Thus, any argument that the BIA failed to follow its decision in Matter of Sotelo-Sotelo is without merit.
The Government also argues that we lack jurisdiction to consider Bernabe-*405Reyes’ rehabilitation claim, contending that it is merely a third attempt to challenge the weight the BIA gave to the equities in the case in the exercise of its discretion. To the extent that the claim challenges the weight the BIA gave to the equities in the case as a matter of discretion, we again agree that we lack jurisdiction to consider it. However, we read Bernabe-Reyes’ brief to argue that, like in Matter of Arreguin De Rodriguez, the BIA departed from the legal standard for determining cancellation of removal by deciding that Bernabe-Reyes’ failure to show rehabilitation precluded relief. Thus, this claim raises a question of law over which we retain jurisdiction.
In Matter of Arreguin De Rodriguez, the BIA considered a request for relief from exclusion by a woman who was serving a term of imprisonment on her conviction for importing marijuana. The BIA rejected the IJ’s decision that Arreguin “must also convince the court that she has rehabilitated.” 21 I. & N. Dec. at 40 (quotation marks omitted). The BIA explained that an alien’s rehabilitation is one of many factors to be considered in evaluating whether relief is warranted. Id.
Bernabe-Reyes argues that the BIA treated the rehabilitation factor in his case as a prerequisite to granting relief. We disagree. As mentioned earlier, the BIA referenced a number of important factors, including Bernabe-Reyes’ long residence in the United States, his many relatives in the United States, and the fact that he contributes to the care of his grandmother. Furthermore, the BIA explicitly acknowledged that where a criminal conviction exists, rehabilitation “ordinarily” must be shown, but it is not a prerequisite for the grant of relief. (A.R.4.) We therefore cannot conclude that the BIA used a legal standard different from the one established in Matter of Arreguin De Rodriguez.
We will therefore dismiss the petition for review in part and deny it in part.
. We review questions of law de novo, but we "defer to the BIA's reasonable interpretations of statutes it is charged with administering.” Augustin v. Att’y Gen., 520 F.3d 264, 267 (3d Cir.2008).
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OPINION OF THE COURT
PER CURIAM.
Matthew Tucker, who is involuntarily committed to Greystone Psychiatric Hospital, appeals pro se from the District Court’s order granting defendants’ motions for summary judgment. For the reasons that follow, we will affirm.
In January 2004, Tucker filed a complaint under 42 U.S.C. § 1983 alleging that his right to access the courts was violated. Tucker alleged that “Collins I’Jama, Clerk *407of the Superior Court of N. Jersey, Newark, N. NJ”, had not filed or processed three complaints that Tucker allegedly submitted “over a year and a half and counting.” Tucker claimed that this amounted to a deprivation of due process and equal protection. The District Court permitted Tucker to amend his complaint in July 2007, and Tucker added as defendants Greystone employees Beverly Bailey and Danielle Barnave. Tucker alleged that Bailey and Barnave also deprived him of his constitutional right to access the courts by negligently mishandling his complaints and failing to mail them to the Superior Court.
All defendants moved for summary judgment, which the District Court granted. The court noted that the parties did not dispute that the defendants performed any deliberate acts to violate Tucker’s rights. Even if Tucker could show that defendants intentionally interfered with the mailing or filing of his complaints, he failed to show that he sustained any actual injury. Specifically, the court noted that Tucker chose not to re-file his complaints after discovering that the original filings had not been received, which foreclosed any claim that he was injured by defendants’ acts. The court also cited defendants’ unrebutted evidence that Tucker had filed similar complaints in federal court, which disposed of his claims. Because Tucker failed to carry his evidentia-ry burden on his § 1988 claims, defendants were entitled to summary judgment and Tucker was denied relief.
Tucker timely appealed. We have appellate jurisdiction to review the judgment and our review is plenary. See 28 U.S.C. § 1291; Atkinson v. LaFayette Coll., 460 F.3d 447, 452 (3d Cir.2006). Summary judgment will be affirmed if the record demonstrates that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To survive a motion for summary judgment, the non-moving party must present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005).
Like prisoners, individuals who are involuntarily committed to a mental institution have the right to access the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Gibson v. Superintendent of N.J. Dep’t Law & Pub. Safety-Div., 411 F.3d 427, 441-42 (3d Cir.2005) Cornett v. Donovan, 51 F.3d 894, 897-98 (9th Cir.1995). However, due process does not protect prisoners from negligent governmental acts, nor is it designed to supplant traditional tort law. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Section 1983 claims also cannot be initiated based on negligent denials of access. Id.; see also Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir.1994). In addition, this Court has extended Daniels to hold that an official may be liable only if she acts “wrongfully and intentionally.” Gibson, 411 F.3d at 445. Other courts agree. See Pink v. Lester, 52 F.3d 73, 76 (4th Cir.1995) (relying on McDonald v. Smith, 472 U.S. 479, 482-83, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985), to find that negligent acts do not permit recovery under the First Amendment); Snyder v. Nolen, 380 F.3d 279, 291 n. 11 (7th Cir.2004).
The record reflects that Tucker did not provide evidence to show that I’Jama intentionally or deliberately refused to process or file his complaints, or that Bailey and Barnave intentionally or deliberately prevented his complaints from being delivered to the Superior Court. Tucker also admitted at his deposition that he did not have any personal knowledge or evidence to support these allegations. As appellees argue, at best, their conduct was *408negligent, which is an insufficient basis for liability on a denial of access claim under 42 U.S.C. § 1983. Tucker’s speculative beliefs that the defendants are either collectively or individually liable does not establish that any of these defendants intentionally denied him access to the court.1
Even if Tucker had provided evidence of an intentional act, he fails to show that he sustained any actual injury. See Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (requiring a claimant to show actual injury by the alleged denial of access). Defendants show, and Tucker does not refute, that he pursued identical claims in several federal litigations pending during the same time period. Even more striking, Tucker admitted at deposition that he could have simply re-sent the complaints to the Superior Court after he realized that the original mailings had not been received. Instead, he filed the current lawsuit, in addition to other similar lawsuits.2 Thus, he fails to show that he had no other opportunity to seek relief for these claims. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (relief should be provided when a plaintiff loses the opportunity to sue or opportunity to seek some particular order of relief); Oliver v. Fau-ver, 118 F.3d 175, 177 (3d Cir.1997) (defendants’ actions resulted in the “loss or rejection of a legal claim.”).
Finally, because Tucker failed to prove any evidence of conspiracy, let alone any evidence that defendants acted with a discriminatory animus, he fails to sustain a claim of conspiracy under 42 U.S.C. § 1985 against defendants Barnave and Bailey.3
Accordingly, based on the record and Tucker’s lack of any evidence to overcome summary judgment, we will affirm the District Court’s order.
.Tucker argued to the District Court and in his briefs to this Court that officials representing the State of New Jersey allegedly made false representations during a hearing in 2001 regarding Tucker's involuntarily commitment to a mental institution. Based on the alleged misrepresentations by the state and the court during the hearing, Tucker argues that appel-lees lack credibility in the current lawsuit. Tucker provides a copy of the State’s brief arguing to uphold his commitment as well as a transcript from the hearing to support his claims. This evidence neither establishes that Tucker's constitutional rights were violated in the current lawsuit nor provides a sufficient basis to overcome summary judgment. While his claims that he is illegally confined may be concerning, they are irrelevant to the instant matter.
. See Matthew Tucker v. Michael Arnold, et al, No. 03-5704-, 2009 WL 1617951 (D.N.J. June 9, 2009) (nearly identical action against the Deputy Clerk of the Morris Vicinage of the Superior Court of New Jersey, as well as defendants Bailey and Barnave, for negligently mishandling his mail).
. We decline to address any of Tucker's remaining claims because he does not provide evidence to support these allegations. We also do not need to address appellees' remaining arguments because the record demonstrates that Tucker failed to provide any evidence to overcome the District Court's grant of summary judgment.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Audrey Barzanty brought two claims against her employer, Verizon Pennsylvania, Inc., under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VTI”), alleging gender discrimination and a hostile work environment. The District Court granted Verizon’s motion for summary judgment, dismissing both claims. Bar-zanty appeals only the District Court’s dismissal of her hostile work environment claim for failure to exhaust administrative remedies. We will affirm.
I.
Barzanty was employed by Verizon as a splicing technician from 1986 until her employment was terminated on December 21, 2004.1 She was discharged for multiple violations of the Verizon Code of Business Conduct, including (1) seeking reimbursement for hours she did not work; (2) leaving her work site without permission; and (3) using a company truck for personal shopping.
On September 19, 2005, Barzanty submitted a General Intake Questionnaire to the Pittsburgh office of the Equal Employment Opportunity Commission (“EEOC”). On the questionnaire, she checked off “discharge” and “harassment” as the bases of her alleged discrimination. On November 16, 2005, she filed a Form 5 Charge of Discrimination, alleging gender discrimination arising only out of Verizon’s decision to terminate her employment. She claimed she was discriminated against because males who engaged in similar infractions were not discharged. On March 30, 2006, the EEOC issued a right-to-sue letter finding no cause.
*413Barzanty subsequently filed a two-count complaint under Title VII in the United States District Court for the Western District of Pennsylvania, alleging Verizon and her supervisor, Allen Nemetz, subjected her to a hostile work environment, and Verizon discharged her on the basis of gender.2 After discovery, Verizon filed a motion for summary judgment, contending (1) Barzanty’s claim was time barred because she failed to file her EEOC charge within 300 days of her termination; (2) she did not exhaust her administrative remedies because the EEOC charge did not mention a hostile work environment; and (3) she could not state a prima facie case of gender discrimination with respect to her discharge.
On November 5, 2007, Magistrate Judge Robert C. Mitchell recommended the summary judgment motion be granted based on Verizon’s second and third arguments. The Magistrate Judge provided the following explanation as to why it recommended that the District Court dismiss Barzanty’s hostile work environment claim:
The Form 5 Charge of Discrimination identified the December 21, 2004 discharge as the only issue Plaintiff wanted to bring to the agency’s attention. Plaintiff did not check the box indicating that it was a continuing action and the text makes no mention of a hostile work environment. Since this is the document that was forwarded to Verizon for a response, it would be prejudicial to the employer to compel it to respond to claims not contained therein.
Report and Recommendation at 23 (internal citation omitted). Barzanty then filed an Objection to the Magistrate Judge’s report, contending Verizon had waived its ability to object to her hostile work environment claim. The District Court issued a Memorandum Order on December 6, 2007, adopting in full the Magistrate Judge’s recommendations.
Barzanty filed a timely Notice of Appeal, alleging only that the District Court erred in dismissing her hostile work environment claim for failure to exhaust administrative remedies. This appeal follows.3
II.
A.
Barzanty contends she exhausted her administrative remedies before filing this suit. A plaintiff bringing an employment discrimination claim under Title VII must comply with the procedural requirements set forth in 42 U.S.C. § 2000e-5. Before filing a lawsuit, a plaintiff must exhaust her administrative remedies by filing a timely discrimination charge with the EEOC. Id. §§ 2000e-5(b), (e)(1), (f)(1). The EEOC will then investigate the charge, and the plaintiff must wait until the EEOC issues a right-to-sue letter before she can initiate a private action. Burgh v. Borough Council, 251 F.3d 465, 470 (3d Cir.2001). The ensuing suit is *414limited to claims that are within the scope of the initial administrative charge. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir.1996). “The purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court.” Id
After a charge is filed, “the scope of a resulting private civil action in the district court is ‘defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination ....’” Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir.1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976)); see also Antol, 82 F.3d at 1295; Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984). Although this standard does not necessarily preclude a plaintiff from asserting a claim for the mere failure to check a box on an EEOC Charge Form, it does prevent a plaintiff from “greatly expanding] an investigation simply by alleging new and different facts when [s]he [is] contacted by the Commission following [her] charge.” Hicks, 572 F.2d at 967. Because the EEOC is required to serve notice on the employer against whom the charges are made, this standard also allows an employer to be put on notice of the claims likely to be filed against it. See 42 U.S.C. §§ 2000e-5(b), (e)(1).
Interpreting Barzanty’s EEOC charge liberally, her hostile work environment claim was still not within the scope of the charge. In Anjelino v. New York Times Co., 200 F.3d 73, 94-95 (3d Cir.1999), we held a hostile work environment claim was within the scope of an initial EEOC charge because it alleged the plaintiff was subjected to an “abusive atmosphere,” a phrase which is interchangeable with “hostile work environment.” But there is no analogous language in Barzanty’s EEOC charge which could give rise to a hostile work environment claim. The Form 5 Charge of Discrimination identified only an allegation of gender discrimination relating to Barzanty’s discharge on December 21, 2004. Barzanty provided no facts that suggest a hostile work environment, and she did not check the box indicating her charge was a “continuing action.”
Barzanty cites Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir.1984), to support her argument. In Howze, we held that the plaintiff could amend her complaint to include a retaliation claim. Id at 1212. Her initial EEOC charge alleged only race discrimination based on her employer’s failure to promote her to a position for which she was qualified. Id at 1210. Because a reasonable investigation by the EEOC would have encompassed a retaliation charge, we allowed the plaintiff leave to amend. Id at 1212. The discrimination and retaliation claims were alternative allegations regarding the employer’s failure to promote the plaintiff, and the facts supporting the former allegation were the same as those supporting the latter. Id Here, however, Barzanty’s two claims related to separate occurrences. Although her former supervisor, Mr. Nemetz, was allegedly involved in both incidents, the gender discrimination claim involved the discrete act of Verizon’s termination of Barzanty’s employment, while the hostile work environment allegation involved continuing occurrences unrelated to her discharge.4 Accordingly, Howze does not support Barzanty’s appeal.
*415As additional support for Barzanty’s argument that she exhausted her administrative remedies, she attempts to use her answers to the EEOC Intake Questionnaire in which she alleged a “hostile work situation.” This she cannot do. The EEOC Charge Form and the Intake Questionnaire serve different purposes. An Intake Questionnaire facilitates “pre-charge filing counseling” and allows the Commission to determine whether it has jurisdiction to pursue a charge. Federal Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147, 1159, 170 L.Ed.2d 10 (2008).5 Moreover, the Intake Questionnaire is not shared with the employer during the pen-dency of the EEOC investigation. On the other hand, an EEOC Charge Form serves to define the scope of the Commission’s investigation and to notify the defendant of the charges against it. See 42 U.S.C. § 2000e-5(b) (requiring the Commission to serve notice of the charge on the employer against whom it is made within ten days, and to conduct an investigation); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359-60, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (stating the same). A plaintiff cannot be allowed to transfer the allegations mentioned only in the questionnaire to the charge itself. Not only would this be circumventing the role of the Commission, but it would be prejudicial to the employer.6 See, e.g., Park v. Howard Univ., 71 F.3d 904, 909 (D.C.Cir.1995) (“To treat Intake Questionnaires willy-nilly as charges would be to dispense with the requirement of notification of the prospective defendant ....” (quoting Early v. Bankers Life and Cas. Co., 959 F.2d 75, 80 (7th Cir.1992))); Binder v. PPL Servs. Corp., No. 06-CV-2977, 2009 WL 3738569, at *6 (E.D.Pa. Nov.5, 2009); Rajoppe v. GMAC Corp. Holding Corp., No. 05-2097, 2007 WL 846671, at *7 (E.D.Pa. Mar.19, 2007); Johnson v. Chase Home Fin., 309 F.Supp.2d 667, 672 (E.D.Pa.2004).
For these reasons, Barzanty’s hostile work environment claim is outside the scope of her charge of discrimination.
B.
Barzanty also argues Verizon waived its administrative exhaustion defense to her hostile work environment claim because it failed to file a motion to dismiss under Federal Rule of Civil Procedure 12(b). A party waives a defense only if it fails to raise it by motion and does not include it in a responsive pleading. Fed. R.Civ.P. 12(h). Verizon properly asserted an affirmative defense for Barzanty’s failure to comply with the statutory prerequi*416sites of her action. Following the close of discovery, Verizon moved for summary judgment on this basis, which the District Court subsequently granted. Accordingly, Verizon did not waive its objection for failure to exhaust administrative remedies.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The Magistrate Judge’s Report and Recommendation stated Barzanty was employed by Verizon from 1974 to 1981, and from 1993 to her discharge. We use the dates in Barzanty's EEOC Charge of Discrimination Form.
. She also filed a grievance through her union, claiming her discharge violated the parties' collective bargaining agreement. This issue went to arbitration, and the arbitrator reduced the discharge to a six-month suspension. Barzanty was reinstated as an employee of Verizon with back pay in August 2007.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision granting summary judgment. See Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir.2009). 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). In making this determination, we consider the evidence in a light most favorable to the non-moving party. Prowel, 579 F.3d at 286.
. Multiple cases applying Howze have made this distinction. See, e.g., Valdes v. New Jersey, No. Civ. 05-3510(GEB), 2005 WL 3447618, at *4 (D.NJ. Dec.15, 2005) (dismissing a hostile work environment claim because the EEOC charge alleged only retaliation and the claims were not "reasonably related”); Smith-Cook v. Nat'l R.R. Passenger Corp. (AMTRAK), No. 05-00880, 2005 WL 3021101, at *4 (E.D.Pa. Nov.10, 2005) (dismissing claims *415of retaliation and an ongoing policy of discrimination because plaintiff's charge referred only to "discrete, isolated incidents of discrimination ... as opposed to allegations of a company wide practice of discrimination"); Pad v. Rollins Leasing Corp., No. 96-295-SLR, 1997 WL 811553, at *6 (D.Del. Dec. 18, 1997) (allowing the plaintiff's gender discrimination claim to proceed because the facts supporting his “charge of retaliation are the same as those supporting the complaint's claim of gender discrimination”).
. Although the questionnaire in Holowecki was different from Barzanty's questionnaire, the general purpose for using each one was the same.
. Barzanty argues that because Verizon requested her EEOC file, including the Intake Questionnaire, denied the allegations of a hostile work environment in its answer, and questioned her during her deposition on the allegations of a hostile work environment, Verizon would not be prejudiced by allowing her to proceed on this claim. Although Verizon may not be unduly prejudiced in this case, Barzanty still cannot circumvent the aforementioned administrative exhaustion requirements. See Anjelino, 200 F.3d at 93 ("The preliminary step of the filing of the EEOC charge and the receipt of the right to sue notification are 'essential parts of the statutory plan (quoting Ostapowicz, 541 F.2d at 398)).
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PER CURIAM.
Jose Gonzalez-Rivera, a federal prisoner, appeals an order of the United States *420District Court for the Middle District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241. We will affirm.
Following a jury trial, Gonzalez-Rivera was convicted in the United States District Court for the Eastern District of Pennsylvania of conspiracy to distribute in excess of five kilograms of cocaine and related charges. In April 1993, he was sentenced to life imprisonment and ordered to pay a special assessment of $250. See United States v. Quintero, 38 F.3d 1317, 1320 n. 1 (3d Cir.1994). We upheld Gonzalez-Rivera’s conviction, but remanded for resen-tencing. Id. at 1335, 1348. On November 7, 2000, the District Court resentenced Gonzalez-Rivera to 36 years imprisonment and imposed five years of supervised release, a special assessment of $50, and a fine of $750. Gonzalez-Rivera appealed again and we affirmed the sentence and conviction. See United States v. Gonzalez-Rivera, 29 Fed.Appx. 848 (3d Cir.2002) (nonprecedential). His efforts to obtain post-conviction relief have been unsuccessful.
In July 2009, Gonzalez-Rivera filed a § 2241 petition in the Middle District, alleging that the Bureau of Prisons (“BOP”) improperly withdrew money from his inmate account to pay the fine that was imposed as part of his criminal sentence. He also argued that the sentencing court failed to consider the factors set forth in 18 U.S.C. § 3553(a) and that the Sentencing Guidelines “do not take into account all of the considerations that are now relevant to the ... sentencing decision.” The District Court dismissed the petition, concluding that the BOP had authority to set a payment schedule for criminal fines and that Gonzalezr-Rivera could not challenge his conviction under § 2241. Gonzalez-Rivera filed a timely motion for reconsideration, which the District Court denied. This appeal followed.
Gonzalez-Rivera challenges the execution of his sentence by asserting that the BOP “exceeded its authority” in establishing a payment schedule for the fine imposed by the District Court. See 18 U.S.C. § 3572(d). This claim falls within the purview of a § 2241 petition. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001); Matheny v. Morrison, 307 F.3d 709, 712 (8th Cir.2002) (stating that inmates’ challenges to payment schedules set by BOP “concern the execution of sentence, and are therefore correctly framed as § 2241 claims”). We have jurisdiction pursuant to 28 U.S.C. § 1291.
In support of his claim, Gonzalez-Rivera relied on United States v. Corley, 500 F.3d 210, 226-27 (3d Cir.2007), where we held that, under the Mandatory Victims Restitution Act (“MVRA”), a sentencing court impermissibly delegates its authority when it orders immediate payment of restitution with knowledge that the defendant is financially unable to make payment immediately.1 Corley is distinguishable, however, because Gonzalez-Rivera is challenging a fine, not a restitution order.
The MVRA, which was applicable when Gonzalez-Rivera was resentenced in 2000, provides that “[a] person sentenced to pay a fine or other monetary penalty, including restitution, shall make such payment immediately, unless ... the court provides for payment on a date certain or in installments.” 18 U.S.C. § 3572(d)(1).2 With *421restitution, the MVRA also mandates that the sentencing order include a payment schedule in consideration of the defendant’s economic circumstances. See 18 U.S.C. § 3664(f)(2). Importantly, there is no analogous requirement for the imposition of fines. According to Gonzalez-Rivera’s § 2241 petition, the court at resen-tencing found that “the defendant has the wherewithal to earn [the $750 fine] in prison work programs, and that [it] is payable immediately.” The sentencing court’s order for immediate payment of the fine was permissible.3 See United States v. Ellis, 522 F.3d 737, 738-39 (7th Cir.2008) (holding that sentencing court did not improperly delegate its authority when it ordered that fine “[p]ayments are due immediately, ... but may be paid from prison earnings in compliance with the Inmate Financial Responsibility Program.”).
For the foregoing reasons, we will affirm the judgment of the District Court.
. Subsequently, a petition for writ of certiora-ri was granted and the Supreme Court vacated the judgment on a ground unrelated to the improper delegation issue. See Corley v. United States, — U.S. —, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009).
. We recognize that Gonzalez-Rivera's offenses pre-date the MVRA. In United States v. *421Edwards, 162 F.3d 87, 91 (3d Cir.1998), we held that retroactive imposition of restitution under the MVRA violated the Ex Post Facto Clause. No Ex Post Facto violation occurred here, however, because the enactment of § 3572(d)(1) did not increase the punishment for Gonzalez-Rivera's crime.
. We also agree with the District Court that Gonzalez-Rivera’s sentencing claims are not cognizable in a § 2241 petition. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002); In re Dorsainvil, 119 F.3d 245, 250 (3d Cir.1997).
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OPINION OF THE COURT
SCIRICA, Chief Judge.
In this appeal, Thom Lewis challenges the District Court’s judgment dismissing his complaint as barred by res judicata. We will affirm.
A brief procedural history of an earlier lawsuit filed by Lewis is germane to the issue in this appeal. Lewis was the President and Chief Executive Officer of Collie Rescue of Central Pennsylvania Inc., a non-profit organization. In March 2007, Lewis filed a civil rights action under 42 U.S.C. § 1983 against several employees of the Commonwealth of Pennsylvania1 as well as several private citizens,2 Lewis v. Smith et al., No. 07-cv-512 (M.D.Pa.) (Muir, J.) {“Lewis I ”). Later that month, Lewis filed an amended complaint alleging that defendants were involved in the illegal *423transportation and sale of dogs in Pennsylvania and had harassed him and retaliated against him.
On July 10, 2007, Judge Muir granted defendant Curcillo’s motion under Fed. R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. Later that month, the court granted in part the Commonwealth defendants’ Rule 12(b)(6) motion, dismissing all claims against all Commonwealth defendants except Deb Smith. On August 13, 2007, defendants Dan Flah-erty and Frank Sterner filed a Rule 12(b)(6) motion to dismiss. Lewis did not file a brief in opposition. Instead, on September 3, 2007, Lewis filed a second amended complaint. On September 5, 2007, Judge Muir entered an order striking the second amended complaint under Fed.R.Civ.P. 15(a) because Lewis had not obtained prior authorization from the court or written consent of the parties to file it. The September 5, 2007 order also granted Lewis an additional 20 days to file a brief in opposition to the pending motion to dismiss. On October 18, 2007, after Lewis had filed his opposition brief, Judge Muir granted Flaherty and Sterner’s motion to dismiss, thus leaving Commonwealth employee Deb Smith as the only remaining defendant in Lewis I.3 Lewis never appealed the court’s orders granting defendants’ motions to dismiss.
On November 2, 2007, two weeks after Judge Muir granted Flaherty and Sterner’s motion to dismiss, Lewis filed the present action, Lewis v. Smith et al., No. 07-cv-2011 (M.D.Pa.) (Jones, J.) (“Lewis II”), another § 1983 civil rights complaint. Lewis named as defendants Jesse Smith, Mary Bender, Rick Burd, John Breiner, Dan Flaherty, and Frank Sterner, all of whom were defendants in Lewis I. In his second suit, Lewis made the same general allegations regarding defendants’ involvement in the illegal transportation and sale of dogs in Pennsylvania and their retaliation against him. On August 7, 2008, Judge Jones granted defendants’ Rule 12(b)(6) motions and dismissed the complaint with prejudice, holding the action was barred by res judicata. We agree.4
“The doctrine of res judicata ‘protects litigants from the burden of relit-igating an identical issue with the same party or his privy and promotes judicial economy by preventing needless litigation.’ ” Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir.2007), abrogated in part, on other grounds, by Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230, 233-34 (3d Cir.2009) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). Three elements are required for the doctrine to take effect: (1) a final judgment on the merits must have been rendered in a prior suit; (2) the same parties or their privies must have been involved in both suits; and (3) the subsequent suit must have been based on the same cause of action as the original. Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.1991). Each element is met in this case. First, dismissal for failure to state a claim *424under Rule 12(b)(6) is a final judgment on the merits for res judicata purposes. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Post, 501 F.3d at 169. Second, Lewis is the plaintiff in both Lewis I and Lewis II, and all of the defendants in Lewis II were also defendants in Lewis I. Finally, the same civil rights causes of action arising out of Lewis’s allegations of dog trafficking are at issue in both cases.5
Lewis contends, however, that res judicata should not apply because of various errors allegedly committed by the Lewis I court. Specifically, Lewis contends the Lewis I court erred by striking the second amended complaint under Rule 15(a), by failing to sua sponte grant him leave to amend his complaint, and by staying discovery while motions to dismiss were pending. But these arguments should have been raised in a timely appeal. They do not render the Lewis I court’s Rule 12(b)(6) judgments “anything other than a final judgment on the merits.” Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 172 (3d Cir.2004). We are highly skeptical of Lewis’s claims of error, but we need not reach those issues. The United States Supreme Court has rejected the argument that res judicata does not apply when there has been error by the court in the previous action. See Moitie, 452 U.S. at 398, 101 S.Ct. 2424 (“[T]he res judicata consequences of a final, unap-pealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.”). If Lewis disagreed with the Lewis I court’s rulings, he should have moved for reconsideration or filed an appeal rather than file a second action.6
For the foregoing reasons, we will affirm the judgment of the District Court.
. The Commonwealth defendants were Jesse Smith, Mary Bender, Rick Burd and John Breiner (employees of the Pennsylvania Department of Agriculture, Bureau of Dog Law Enforcement); Deb Smith (an employee of the Pennsylvania Department of State); and Ron Hill, Mark Foerster, and John Downing (attorneys employed by the Pennsylvania Office of Attorney General's Charitable Trusts Section).
. The private citizen defendants were Dan Flaherty, Frank Sterner, and Joseph Curcillo.
. The court granted Smith’s motion for summary judgment on July 29, 2008 and entered judgment in favor of Smith and against Lewis on August 4, 2008.
. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. The court granted defendants' motions to dismiss under Fed.R.Civ.P. 12(b)(6). Thus, we accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them. Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 962 (3d Cir.1991). A district court’s application of the doctrine of res judicata is a question of law over which we exercise plenary review. See Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 248 (3d Cir.2006).
. Lewis admits the two cases are based on the same legal theories, but he contends there were factual differences between the complaints in Lewis I and Lewis II. The addition of some new facts to support his legal theories does not prevent preclusion in this case. Because the term "cause of action” cannot be precisely defined, we look to the "essential similarity of the underlying events giving rise to the various legal claims.” Davis v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir.1982) (en banc). In this regard, we focus on "(1) whether the acts complained of and the demand for relief are the same ...; (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4) whether the material facts alleged are the same.” United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d Cir.1984) (citations omitted); see also Lubrizol Corp., 929 F.2d at 963. Focusing on these factors in light of the "essential similarity of the underlying events giving rise” to Lewis's legal claims, we find the judgment in Lewis I precludes Lewis from maintaining Lewis II.
. Lewis also challenges the District Court’s December 1, 2008 order granting Flaherty and Sterner's joint motion for an extension of time to file an application for counsel fees under 28 U.S.C. § 1927 and 42 U.S.C. § 1988. We do not have jurisdiction to determine an unresolved issue of attorney’s fees and thus will dismiss the appeal to the extent it challenges the December 1, 2008 order. See Am. Soc'y for Testing & Materials v. Corrpro Cos., 478 F.3d 557, 580 (3d Cir.2007).
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OPINION
COWEN, Circuit Judge.
Defendants Jack H. Boyajian and Marvin Brandon (“Appellants”) appeal, pro se, from the judgment entered against them by the United States District Court for the Eastern District of Pennsylvania. We will affirm.
I.
Plaintiff Marshall, Dennehey, Warner, Coleman & Goggin, P.C. (“Marshall Den-nehey”) filed a complaint in the Philadelphia County Court of Common Pleas against the Appellants, Karen Wachs, and a number of corporate entities (“Corporate Defendants”). Marshall Dennehey alleged that it entered an agreement with the Defendants to defend them in a number of lawsuits arising out of their debt collection activities. However, the Defendants (except for Wachs) allegedly defaulted by failing to pay outstanding legal fees in the amount of approximately $160,092.76. In addition to this breach of contract claim, Marshall Dennehey asserted a cause of action for unjust enrichment.
*433The matter was removed to the District Court, and a bench trial was conducted. The District Court made its requisite findings of fact and conclusions in a memorandum and order entered on the docket on July 23, 2008.
The District Court initially noted that Brandon and Wachs are attorneys who at various times served as law partners or associates of Boyajian. In turn, Boyajian was the principal partner and owner of the Corporate Defendants. The Appellants acted pro se at trial, and the Corporate Defendants went unrepresented and tendered no defense. Marshall Dennehey also agreed to dismiss its claims against Wachs.
According to the District Court, the evidence “established that, at the request of Karen Wachs and Jack Boyajian, Marshall Dennehey agreed to provide legal representation of Defendants in regard to multiple lawsuits filed against them arising out of their various debt collection activities, including several class actions brought against Defendants under the Fair Debt Collection Act 15 U.S.C. § 1692.” (A3.) Marshall Dennehey’s services were initially retained through “a series of e-mails, dated April 14, 2004 to May 10, 2004, that were exchanged between Plaintiff and Ms. Wachs and Mr. Boyajian.” (Id.) As confirmed by the correspondence between the parties, Marshall Dennehey was retained under the same terms for the subsequent lawsuits. In turn, it performed legal services as set forth in the documentation submitted at trial, and the Defendants received and accepted these services. According to the District Court, the hourly rates charged for these services, specifically $200 in the class action matters and $175 for other cases, were fair and reasonable. Nevertheless, despite repeated efforts on the part of Marshall Dennehey, the Defendants still failed to pay the outstanding balance of at least $160,092.76.
Having thereby laid out the grounds for the Defendants’ liability for breach of contract, the District Court specifically addressed and rejected two contrary arguments presented by the Defendants, namely that the claims against them were barred by the Pennsylvania Statute of Frauds and that they were not liable because Marshall Dennehey failed to provide them with the requisite monthly invoices.
Turning to the unjust enrichment cause of action, the District Court observed “that Defendants requested and received from Marshall Dennehey the benefit of its legal services under circumstances in which it would be unjust for Defendants not to pay for those services.” (A6.) The District Court disagreed with the Defendants’ assertion that Marshall Dennehey spent too much time on any one matter, finding that the Defendants were provided skilled representation and that it was circumstances beyond Marshall Dennehey’s control, “including the conduct of its own clients,” which prevented it from resolving the lawsuits in a less expensive and speedier manner. (A7.)
Based on these findings of fact and conclusions of law, the District Court entered judgment in favor of Marshall Dennehey and against the remaining Defendants (including the Appellants) in the amount of $160,092.76. This appeal followed.
II.
The Appellants argue that the District Court committed reversible error by holding them “responsible to pay for alleged legal fees due to Plaintiff for services rendered to the Corporate Defendants in several class action lawsuits.”1 (Appellants’ *434Br. at 6 (emphasis added).) They therefore contend that the District Court offered no explanation for why it pierced the corporate veil to impose individual liability on them, especially when Brandon himself was neither an officer nor a shareholder of any Corporate Defendant. According to the Appellants, “Defendants did not request Plaintiff to provide them legal services individually and Plaintiff did not provide the Defendants or the Corporate Defendants a retainer agreement outlining their professional relationship.” (Id.) We nevertheless find that the District Court committed no reversible error in holding the Appellants liable for the unpaid legal fees.
As Marshall Dennehey addresses in some detail in its appellate brief, the record contained sufficient evidence to support finding that the Appellants either breached their contract or were unjustly enriched by requesting, receiving, accepting, and then not paying for legal services. For instance, the Appellants acknowledged in the District Court that they were named as defendants in thirteen of the debt collection lawsuits defended by Marshall Den-nehey.2 In fact, the District Court heard testimony that the defense of these two men was an important component of the debt collection litigation, especially in light of the evidently minimal assets possessed by the Corporate Defendants. Wachs, who served as the liaison with Marshall Dennehey, testified that she was never instructed to obtain separate retainer agreements for the Appellants when they were individually named as defendants. She further told the District Court that she informed Boyajian about such lawsuits and briefed him on the strategy and issues raised in the litigation. Brandon likewise testified that he knew that he was named as a defendant in a number of cases and that Marshall Dennehey was retained to represent him. The record also indicated that Boyajian wanted Marshall Dennehey “to make [the plaintiffs’ counsel in one of the debt collection actions] go through all the hoops” in his attempt to obtain discovery regarding Boyajian’s personal net worth. (A81 (emphasis omitted).)
The Appellants admittedly point to other evidence possibly supporting their position on appeal. But it is not our job to engage in our own fact-finding. See, e.g., Ragan, 62 F.3d at 507 (stating that appellate court may not substitute its own findings of fact). In the end, we must conclude that the District Court’s findings with respect to the Appellants were neither “ ‘completely devoid of a credible evidentiary basis’ ” nor lacking in any “rational relationship to the supporting data.” Id. (citation omitted).
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court possessed jurisdiction over this removed diversity case pursuant to 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise *434plenary review over the District Court’s legal conclusions, while its findings of fact are reviewed for clear error. See, e.g., Ragan v. Tri-County Excavating, Inc., 62 F.3d 501, 506 (3d Cir.1995); Voest-Alpine Trading USA Corp. v. Vantage Steel Corp., 919 F.2d 206, 211 (3d Cir.1990) This means that a factual finding may be overturned " ‘if it is completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data.' " Ragan, 62 F.3d at 507 (quoting Haines v. Liggett Group, Inc., 975 F.2d 81, 92 (3d Cir.1992)). The parties also do not dispute the District Court's application of Pennsylvania law.
. In their appellate brief, the Appellants likewise state that they were specifically named as defendants in seven lawsuits.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
*436ORDER
PER CURIAM:
Upon consideration of the pleadings filed relative to the motion to amend/correct opinion, the Court grants the motion. The opinion filed July 16, 2002, is modified by replacing the names of the appellants with their initials.
OPINION
K.J., a minor, by and through her parents B.J. and L.J. (collectively, “the parents”), appeals from the district court’s grant of summary judgment in favor of the Fairfax County School Board on her claims for reimbursement pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. § 1400 et seq. (West 2000). The parents seek reimbursement for the non-educational costs of K.J.’s five-month stay at a private psychiatric facility and three years’ tuition at a private boarding school. See 20 U.S.C.A. § 1412(a)(10)(C)(ii). We affirm.
I.
On January 14, 1997, a school counselor for the Fairfax County Public Schools (FCPS) referred K.J., then a tenth grader at an FCPS high school, for evaluation to determine whether she qualified for special education services pursuant to the IDEA. J.A. 177. K.J. had been previously diagnosed with emotional disabilities, including obsessive-compulsive disorder, bipolar disorder, and severe attention deficit hyperactivity disorder. Prior to tenth grade, FCPS personnel, noting that K.J. nonetheless had earned high grades, concluded that her disabilities did not impair her school performance. J.A. 153-56,163.
At the time of the 1997 referral, however, K.J.’s academic performance was deteriorating substantially, and she began demonstrating more serious behavioral problems. J.A. 198, 220, 262-65, 267. On April 2, 1997, subsequent to evaluation, FCPS informed KJ.’s parents that she was now eligible for special education services. J.A. 199-200. As a result, FCPS planned a meeting between the parents and a team of school personnel, including an administrator, special education teacher, and school psychologist, to develop an Individualized Education Program (IEP). The IDEA requires that an IEP team develop, for each student with a qualifying disability, a written IEP that includes a statement of the student’s current levels of educational performance, a summary of special education and related services to be offered, and measurable annual goals and short-term objectives. 20 U.S.C.A. § 1414(d).
Four or five days later, the parents admitted K.J. to the Graydon Manor Psychiatric Hospital in Leesburg, Virginia, because K.J. had an “emotional breakdown.” J.A. 8, 16, 390. While K.J. remained hospitalized at Graydon Manor, an IEP team convened on April 27,1997; at the parents’ request, the IEP meeting continued on June 12, 1997. The IEP team and the parents ultimately concluded that they would wait until K.J.’s discharge from Graydon Manor to determine an appropriate placement. J.A. 83, 207-18. The school system also agreed to, and later did, pay for the educational components of K.J.’s care at Graydon Manor. J.A. 8-9, 64, 391.
In September 1997, the parents removed K.J. from Graydon Manor and enrolled her in the Hyde School, a private boarding school located in Bath, Maine. J.A. 10. Although geared in many ways toward students with behavior problems, the Hyde School offered no special education program, no on-site clinical personnel, and no certified special education instructors.
The parties dispute when the parents notified FCPS of the transfer, but in any event the parents did not request reimbursement from FCPS of the approximate*437ly $25,000 annual tuition for the Hyde School until November 1997. J.A. 10-11, 84. In response to this request, FCPS scheduled another IEP team meeting with the parents for mid-December.
Prior to the meeting, on December 11, 1997, an FCPS psychologist traveled to the Hyde School to reevaluate KJ.’s “current levels of functioning” given her intervening hospitalization. J.A. 300-01, 306-10. The record reveals that at the time of the psychologist’s visit, K.J. continued to have many of the same academic and behavioral difficulties that she had demonstrated the prior year at her FCPS high school. J.A. 307; see also J.A. 335, 388-89.
The IEP team, the parents, and the Hyde School’s Director of Studies (who participated via speakerphone) then convened on December 18, 1997. The team developed an IEP proposing a local private day school, rather than the Hyde School, as the appropriate placement for K.J. J.A. 312-23. The school board maintains, and the parents do not dispute, that “private day school” denotes a school setting offering a full-day, non-residential educational program, smaller class sizes, and on-site clinical personnel. J.A. 77-88.
The IEP did not identify a particular school. J.A. 11, 18, 72-73. The parents contend that the IEP team members recommended conflicting placements for K.J. and that the IEP case manager improperly and inaccurately amended the IEP after the meeting to reflect a consensus on a private day setting as the recommended placement. J.A. 48. Contrary to the parents’ assertion, however, the evidence demonstrates that the team did reach a consensus as to a private day placement during the course of the IEP meeting. See J.A. 72-74, 84-85,101, and 312.
KJ.’s father signed the IEP form at the meeting, indicating that he did “NOT AGREE with the contents and recommendations of the proposed IEP,” and thus rejected the proposed placement. J.A. 312. Nonetheless, subsequent to this meeting, K.J.’s mother visited the private day schools identified orally by the IEP team as likely placements. She concluded that the schools did not offer the same opportunities for college-track classes and interscholastic sports that K.J. had in the regular education public high school and that KJ.’s classes would be comprised almost entirely, if not exclusively, of special education students. The parents apparently disapproved of the suggested private day schools on this basis. J.A. 10. The parents therefore continued to enroll K.J. at the Hyde School, although K.J. lived at home for summers and holidays. J.A. 10-11,18,1408.
More than one year later, on January 29, 1999, the parents initiated an administrative appeal requesting reimbursement from FCPS of the non-educational costs of Graydon Manor and tuition for the Hyde School for both the 1997-98 and 1998-99 school years, as well as attorneys’ fees. J.A. 968-69. In support of their request for reimbursement, the parents alleged that FCPS violated its duties under the IDEA and associated state regulations with respect to K.J. Id.
On July 30, 1999, a state hearing officer determined that a consensus of the IEP team at the December 1997 IEP meeting was “that [K.J.] should be placed in a local private day placement” and that this placement met the requirements of the IDEA. J.A. 1125-26. Nonetheless, the hearing officer concluded that FCPS should reimburse the parents in an amount equal to the cost of a “suitable local private day program.” J.A. 1126. Then, although K.J. should have graduated the prior month, the IEP team learned that K.J. had not satisfied her high school graduation requirements because she had not completed her senior English class. J.A. 1133-34.
*438Accordingly, on August 27, 1999, the IEP team convened again, over the parents’ objection. This meeting resulted in a recommendation to place K.J. at the Woodson Center, a program facility located adjacent to and as part of a local FCPS high school. J.A. 1133-34, 1147-50, 1408. A representative of the Woodson Center participated in the IEP team meeting. J.A. 1136. The Woodson Center provided college-track Advanced Placement classes at the high school co-facility, a special education program for students with disabilities, and clinical personnel; the IEP team also felt it would provide an appropriate transition from the residential school to a larger college setting. The parents again rejected the IEP and continued K.J. at the Hyde School for a third year. J.A. 1135.
In the meantime, both the parents and FCPS appealed the hearing officer’s July 30, 1999, decision. In their appeal, the parents sought reimbursement for the Hyde School tuition for the 1999-2000 school year, which they incurred subsequent to the hearing officer’s decision, in addition to the relief previously requested. J.A. 1406. The reviewing officer agreed with the hearing officer that FCPS had recommended an appropriate placement for K.J. However, the reviewing officer reversed the hearing officer’s directive that FCPS reimburse the parents because the reviewing officer found that the parents did not provide proper notice to the school before placing K.J. at the Hyde School or before continuing her there for the 1998-99 school year. J.A. 1406-12.
II.
In November 2000, the parents filed suit against the Fairfax County School Board in Virginia state court, appealing the reviewing officer’s decision pursuant to the IDEA and its state corollary, Va.Code Ann. § 22.1-214 (Michie 2000). The school board removed the case to federal district court.
On cross-motions for summary judgment, the district court granted summary judgment to the school board. K.J. v. Fairfax County Sch. Bd., No. 00-1898 (E.D.Va. Aug. 14, 2001). The district court noted at the outset that while it was required to “make an independent decision based on the preponderance of the evidence,” it also was required to “give due weight to the state administrative findings” and consider such findings “prima facie correct.” Id. at 8 (citing Sch. Comm. of Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359, 369, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Kirkpatrick v. Lenoir County Bd. of Educ., 216 F.3d 380, 385 (4th Cir.2000); Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir.1992)).
The district court then proceeded to consider whether FCPS committed any procedural or substantive violation of the IDEA that entitled the parents to reimbursement. The district court first held that any procedural violations committed by FCPS, including its failure to offer a specific placement in writing at the December 1997 IEP meeting or to have a school representative from the proposed placement present at the IEP meeting, were not actionable because they did not result in a loss of an educational opportunity to K.J. or infringe on the parents’ right to participate in the IEP process. Id. at 10-17. The court noted that FCPS, with the parents’ participation, properly decided to wait until K.J. was stabilized and discharged from Graydon Manor before making a placement decision and that FCPS adequately identified a school placement for K.J. when it proposed in writing a “private day school” at the December 1997 IEP meeting. Id.
As to the failure to include a representative from a proposed private day school at *439the December 1997 IEP meeting, the district court observed that one of the primary purposes of including such a representative is “to ensure that the proposed placement is tailored to meet the child’s needs.” Id. at 14. In KJ.’s case this failure did not result in loss of an educational opportunity because “sufficient and varied personnel” were present at the meeting, including an FCPS representative “knowledgeable about the various private day schools’ resources” and whose duties included negotiating placements, and because the parents rejected the proposed placement, rendering any tailoring to the individual private day school unnecessary. Id. at 14-15. The court also observed that “the [parents], and their attorney, fully participated in the meetings where the IEP team developed an educational plan.” Id. at 13.
The district court further determined that each of the placements proposed by FCPS met the IDEA’S substantive requirements for a “free and appropriate education,” defined by the Supreme Court as “educational instruction designed to meet the unique needs of the [student with a disability], supported by such sendees as are necessary to permit the child ‘to benefit’ from the instruction.” Id. at 17 (quoting Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 187-89, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). The district court explained that the private day schools offered “small classes, extensive individual attention, structure and clinical support, experienced staff trained in special education and emotional disabilities, and many advanced level mathematics, science and foreign language courses.” Id. at 18. Similarly, the Woodson Center offered “clinical support, advanced level college preparatory classes, the opportunity for a smooth transition from a small residential setting to a larger college setting, and a special education program designed for students with emotional disabilities.” Id.
The court therefore denied all requests for additional reimbursement. The court concluded that the parents were not entitled to further reimbursement for the cost of KJ.’s hospitalization at Graydon Manor because the IDEA requires only reimbursement for appropriate educational services and because “[i]t is undisputed that FCPS reimbursed the [parents] with $8,440 for the educational services [K.J.] received from Graydon Manor. The [parents] point to no evidence which indicates that Graydon Manor provided [K.J.] with education services which exceeded this amount.” Id. at 19 (citing 20 U.S.C. § 1412(a)(10)(c)).
The court then held that the parents were not entitled to reimbursement for the tuition of the Hyde School because a court, in its discretion, can award reimbursement only if the school district has denied the student a “free and appropriate education” and the parents’ chosen placement is otherwise appropriate. Id. at 18-22 (citing 20 U.S.C. § 1412(a)(10)(C); Florence County Sch. Dist. v. Carter; 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993)). Because each of the placements proposed by FCPS offered a “free and appropriate education” for K.J., the court concluded that the first of those prerequisites had not been met, without reaching the second. Moreover, even as to the period preceding FCPS’s proposed placement at a private day school, a court may deny “reimbursement to parents who unilaterally place their child in private programs” if the parents fail to give notice of “ ‘their intent to enroll their child in a private school at public expense.’ ” Id. at 19-20 (quoting 20 U.S.C. § 1412(a)(l)(C)(iii)(I)). Because it found that the parents failed to provide such notice, the court denied reimbursement of these expenses as well. Id.
III.
The parents contend that the district court erred in granting summary *440judgment against them to the school board. They argue that FCPS’s procedural violations in failing to propose in writing placement at a specific private day school and to include a representative of that school in the December 1997 meeting resulted in a denial of a “free and appropriate education.” They further challenge the district court’s determination that FCPS’s proposed placements and the services delineated in the IEP satisfied the IDEA’S substantive requirements.
After careful review of the record, the parties’ written and oral arguments, and the governing legal principles, we conclude that the parents cannot overcome their burden of showing that the state hearing officer’s factual findings were erroneous, see Barnett v. Fairfax County Sch. Bd., 927 F.2d 146, 152 (4th Cir.1991), and that the district court correctly decided the legal issues before it. Accordingly, we affirm on the reasoning of the district court.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Percell Lyons appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Lyons, No. 5:05-cr-00101-F-l (E.D.N.C. July 13, 2009). 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareemah Bell-Boston appeals the district court’s order dismissing her complaint for lack of subject matter jurisdiction and improper venue. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bell-Boston v. Hilton, No. 1:09-cv-01227-LMB-IDD (E.D.Va. Oct. 30, 2009). 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mikie L. Bell appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bell v. C/O Spence, No. 5:07-ct-03085-D (E.D.N.C. Sept. 14, 2009). 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Wayne Jones appeals the district court’s order denying his motion for relief from judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jones, No. 5:96-cr-00070-BR-l (E.D.N.C. Sept. 11, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476807/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Terrence Cross appeals the district court’s order denying his Fed. R.Civ.P. 60(b)(4) motion to void his criminal judgment. We have reviewed the record and find no reversible error. We note that Cross attempted to use a civil rule to attack his criminal judgment and that he has submitted the federal jurisdiction argument numerous times and has not demonstrated error. Accordingly, we affirm the district court’s order. United States v. Cross, No. 2:03-cr-00010-RBS-l (E.D.Va. Sept. 3, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476809/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence T. Fox, Jr., a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fox v. Drew, No. 2:09-cv-01868-*496HFF, 2009 WL 2381304 (D.S.C. Aug. 3, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476811/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven C. Wilson appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Wilson v. Mann, No. 5:08-ct-03053-BO (E.D.N.C. Aug. 25, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476800/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareemah Bell-Boston appeals the district court’s order dismissing her complaint for lack of subject matter jurisdiction and improper venue. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bell-Boston v. Hilton, No. 1:09-cv-01227-LMB-IDD (E.D.Va. Oct. 30, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476804/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Wayne Jones appeals the district court’s order denying his motion for relief from judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jones, No. 5:96-cr-00070-BR-l (E.D.N.C. Sept. 11, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476806/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Terrence Cross appeals the district court’s order denying his Fed. R.Civ.P. 60(b)(4) motion to void his criminal judgment. We have reviewed the record and find no reversible error. We note that Cross attempted to use a civil rule to attack his criminal judgment and that he has submitted the federal jurisdiction argument numerous times and has not demonstrated error. Accordingly, we affirm the district court’s order. United States v. Cross, No. 2:03-cr-00010-RBS-l (E.D.Va. Sept. 3, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476808/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence T. Fox, Jr., a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fox v. Drew, No. 2:09-cv-01868-*496HFF, 2009 WL 2381304 (D.S.C. Aug. 3, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476810/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven C. Wilson appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Wilson v. Mann, No. 5:08-ct-03053-BO (E.D.N.C. Aug. 25, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476812/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leon McCollum appeals the district court’s order denying his 18 U.S.C. § 3582(c) (2006) motion for reduction of 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. McCollum, No. 4:06-cr-00082-RBH-l (D.S.C. filed Aug. 11, 2009, entered Aug. 12, 2009). McCollum’s challenge to the career offender enhancement cannot be addressed in a § 3582 motion. See United States v. Dunphy, 551 F.3d 247, 251-53 (4th Cir.) (holding that “proceedings under § 3582(c) do not constitute a full resentencing”), cert. denied, — U.S. —, 129 S.Ct. 240, 173 L.Ed.2d 1296 (2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476817/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Falaniko Uti, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Uti v. Johns, No. 5:08-hc-02017-H (E.D.N.C. July 27, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476819/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Lee Shell appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint pursuant to 28 U.S.C. § 1915A(b)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Shell v. Pruitt, No. 7:09-cv-00278-gec-mfu, 2009 WL 2057557 (W.D.Va. July 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *500and argument would not aid the decisional process.
AFFIRMED.
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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/8476825/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warren Chase seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2006). 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 reasonable 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. See 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 Chase has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476814/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis Merrimon Waters appeals the district court’s orders denying a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006) and denying reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United, States v. Waters, No. 1:01-cr-00048-LHT-10 (W.D.N.C. July 29, 2009; 2009 WL 2766988, Aug. 27, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476816/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Falaniko Uti, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Uti v. Johns, No. 5:08-hc-02017-H (E.D.N.C. July 27, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476818/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Lee Shell appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint pursuant to 28 U.S.C. § 1915A(b)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Shell v. Pruitt, No. 7:09-cv-00278-gec-mfu, 2009 WL 2057557 (W.D.Va. July 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *500and argument would not aid the decisional process.
AFFIRMED.
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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/8476820/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raphael Mendez seeks to appeal the district court’s order denying relief on his *503complaint filed pursuant to 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). We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal as frivolous. We also deny the motion to “notice of error”. 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476822/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sandra Hall seeks to appeal the district court’s text order denying her motion for appointment of counsel. 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 order Hall seeks to appeal 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476826/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Corey Fluker appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fluker v. Simmons, No. 9:08-cv-03704-HFF, 2008 WL 5210551 (D.S.C. Dec. 11, 2008); 2009 WL 3048719 (Sept. 23, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476827/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Corey Fluker appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fluker v. Simmons, No. 9:08-cv-03704-HFF, 2008 WL 5210551 (D.S.C. Dec. 11, 2008); 2009 WL 3048719 (Sept. 23, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476829/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Dasta appeals the district court’s order denying relief on his complaint filed pursuant to 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). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Dasta v. Shearin, No. 1:08-cv-00387-AMD, 2009 WL 2902739 (D. Md. filed Sept. 8, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476831/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cecil Simmons seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. Simmons, who filed a motion for reconsideration with the district court pursuant to Fed.R.Civ.P. 59(e) prior to filing his notice of appeal, requests only that this court remand the case to the district court so he may re-file objections to the magistrate judge’s report and recommendation after his initial objections were destroyed in the mail. However, the district court has granted Simmons’s motion and given him the opportunity to file his objections. Accordingly, we dismiss the appeal 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.
DISMISSED.
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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/8476833/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Perry Brown appeals the district court’s final order of judgment entered after a jury returned a defense verdict in Brown’s civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm. Brown v. Maryland, No. 8:07-cv-01956-PJM (D.Md. Feb. 23, 2009). 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476837/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Harris appeals a district court order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). The district court concluded Harris was not entitled to a reduction because after considering Amendment 706 to the Sentencing Guidelines, Harris’ range of imprisonment remained the same, the mandatory minimum sentence. We have reviewed the record and find no error. Accordingly, we affirm. We deny Harris’ motion for appointment of counsel. 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476839/
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PER CURIAM: *
Darlene McDonald, an office manager, suffers from degenerative disc disease in her spine. Following a surgical procedure intended to alleviate her back pain, she ceased working and applied for long-term disability benefits under her employer’s ERISA plan with Hartford Life Group Insurance Company. After reviewing McDonald’s medical records and interviewing her treating physicians, Hartford denied benefits, finding that she was capable of performing sedentary work and therefore *601did not meet the plan’s definition of “disabled.” McDonald brought two administrative appeals, both of which Hartford denied. McDonald brought suit, alleging Hartford abused its discretion by denying her claim. The district court granted summary judgment for Hartford, and McDonald appeals. We affirm.
1. BACKGROUND
A. McDonald’s Job Requirements & Long Term Disability Policy
Darlene McDonald (McDonald) worked as an office manager, business manager, and property manager at the law firm of Bruno & Bruno, LLC (B & B) starting in February 2002. Her job required frequent computer use, prolonged sitting, standing, and walking. She also had to frequently bend, stoop, and reach while filing employee information. Any lifting required was normally under ten pounds, but occasionally it might exceed this amount.
B & B offered long term disability insurance coverage for its employees through CNA Group Life Assurance Company (now known as Hartford Life Group Insurance Company, or Hartford). Under B & B’s policy, an individual qualifies for long term disability benefits if the individual is sick or injured during a 90-day elimination period (beginning on the date of the onset of disability) and for another 24 months following the end of the elimination period. The policy refers to this initial time period (the 90-day elimination period plus 24 months) as the “Occupation Qualifier” period, but it is also known in the insurance industry as the “Own Occupation” period. To receive benefits under the policy during the Own Occupation period, the individual must continuously meet the definition of “disabled” for the entire period. The policy defines “disabled” as “[ijnjury or [s]ickness caus[ing] physical or mental impairment to such a degree of severity that [the individual is] 1) continuously unable to perform the [m]aterial and [substantial [d]uties of [her] [r]egular [occupation; 2) and not [gainfully [e]mployed.”1 The policy is governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., and gives Hartford discretionary authority over the interpretation of the policy and eligibility decisions.
B. McDonald’s Injury and Treatment
In July 2003, McDonald began experiencing headaches and back pain. She suffered a herniated disc in a car accident in June 2004, which exacerbated her pre-ex-isting symptoms. After the accident, she began seeing Dr. Evalina Burger, an orthopedic surgeon. In July 2004, Dr. Burger determined that McDonald suffered from degenerative disc disease2 in both *602the lumbar and cervical regions of her spine, but she did not think that surgery would help at the time. After a November 2004 appointment, Dr. Burger recommended that McDonald avoid “prolonged sitting in front of [a] computer” and limit any lifting. Eventually, Dr. Burger recommended cervical fusion surgery between vertebrae 4-5, 5-6, and 6-7.
Dr. Burger referred McDonald to Dr. John Steck, a neurosurgeon, who concurred in recommending surgery after reviewing McDonald’s MRIs. Dr. Steck performed surgery on McDonald’s lumbar spine on December 28, 2004; McDonald continued working full-time at B & B until December 27, 2004. At the time of the surgery, it was unclear how successful the procedure would be, particularly because the degenerative disc disease affected more than just the lumbar spine. Following the surgery, McDonald reported improvement in her pain but MRIs continued to show evidence of degenerative disc disease. In February 2005, six weeks after the surgery, Dr. Steck noted that McDonald was doing very well and gave her permission to return to work on a part-time basis (four hours a day, three days a week). Dr. Steck’s final chart note for McDonald was dated July 6, 2005, and shows that her MRI reflects “cervical and lumbar spondylosis with arthritic and degenerative changes in the cervicothoracic spine.” McDonald attempted to return to work for a period of time, but soon found it too painful. McDonald applied for long-term disability benefits in June 2005 and her final day of work at B & B was October 12, 2005.
Beginning in October 2004, McDonald started treatment with Dr. Paul Hubbell, a pain management specialist, who determined in a February 13, 2006, letter to Hartford that McDonald “may be able to perform part-time work” but could not return to work on a full-time basis as a result of her “significant arthritic complaints in the cervical spine which cause reflex [sic] significant muscle spasms, headaches, and limitation of position.” Dr. Hubbell also noted in the February 2006 letter that McDonald’s subjective complaints of pain were supported by objective findings of facet pathology and disc pathology, but he also recommended that she receive additional pain therapy, which he predicted might “significantly improve her physical activity capabilities.”3 McDonald reported that her back pain improved some after her surgery, but it has since fluctuated; she still complains of headaches and muscle spasms. Because of her pain, she requires help with her personal grooming and with maintaining her household.
C. Administrative Claims Process
In June 2005, McDonald filed a claim for disability benefits with Hartford. According to Hartford, the 90-day elimination period began December 28, 2004 — the day McDonald underwent surgery — and ended March 28, 2005. The Own Occupation period lasted from December 28, 2004, to March 28, 2007. Therefore, to qualify for disability benefits, McDonald needed to show that she met the definition of “disabled” for the duration of the Own Occupation period. McDonald submitted documentation from Dr. Steck stating that she *603should not bend, stoop, climb, or lift more than ten pounds. Hartford gathered other medical records, including the claim notes, Dr. Steck’s L[ong] T[erm] Disability] Physician’s Statement and Functional Assessment Tool, clinical notes from Drs. Steck and Hubbell, the discharge summary after the surgery, the operative report, and four MRIs of her lumbar and cervical spine. The Functional Assessment Tool indicates that Dr. Steck did not think that McDonald was capable of performing full time work involving “sitting, standing, and walking for varying periods of time, typing on a computer, some bending, stooping, and reaching, regularly lifting items under [ten pounds] and occasionally lifting items over [ten pounds]” as of July 14, 2005. Hartford interviewed McDonald and determined that she was able to get help at work to avoid bending, stooping, and lifting and that B & B was cooperative, allowing her to get help with tasks.
After compiling McDonald’s medical records, Hartford hired Dr. Bruce LeForce, a physician with Reed Review Services, to review McDonald’s file. Dr. LeForce determined that McDonald was:
capable of sitting up to eight hours per day given an opportunity for frequent breaks and changes in position. She can stand and walk occasionally. She cannot lift or carry more than ten pounds and this can be done only occasionally. She can exert a negligible amount of force continuously. She cannot climb, bend, or stoop. These limitations should be considered permanent.... She can work full-time given the other restrictions and
Letter to Attorneys from Dr. Evalina Burger dated July 12, 2004; A physical examination form dated 7/12/04 which was not complete; A Physical Therapy referral dated 7/12/04; A Spine Assessment Form undated; MRI of the Cervical Spine dated 9/10/04; Clinic note[s] dated 10/4/04 through 11/1/04 from Dr. Evalina Burger; Prescription for medication [including Vi-codin] dates 11/1/04; LTD Physician's Statement; MRI of the Cervical Spine dated 10/19/05; Evaluation by Dr. Paul J. Hub-bell dated 10/26/04; Office notes from Dr. Paul J. Hubbell dated 10/26/04 through 8/16/05; Consent forms and clinic record from [surgery] dated 12/13/04.
limitations.... [T]he objective findings indicate that she is capable of full-time work provided that she is limited to a sedentary type job with no climbing, bending, or stooping.
Dr. LeForce concluded that McDonald’s MRI showed “only some degenerative changes without spinal stenosis or evidence of nerve root impingement.” In a letter dated September 30, 2005, Hartford determined that the information contained in McDonald’s file “fail[ed] to support an inability to perform the material and substantial duties of [her] regular occupation” and therefore she was ineligible for benefits.
McDonald appealed the denial and presented additional information for Hartford’s review.4 Hartford hired Dr. Barry Turner, an orthopedic surgeon employed by University Disability Consortium (UDC), to review the original file and the new documents submitted by McDonald. According to Hartford’s January 26, 2006, letter, Dr. Turner did not review Dr. Le-Force’s conclusions, but independently reviewed the file and came to his own conclusions. Dr. Turner attempted to contact McDonald’s treating physicians. He was unable to speak directly with Dr. Steck, but he spoke with a person in Dr. Steck’s office who indicated that McDonald’s last visit was in October 2005, at which time Dr. Steck’s notes reflected that sedentary-level work would be acceptable, without any limitations as to time.
Dr. Turner reported that the records he reviewed supported the conclusion that *604McDonald suffered “generalized cervical and lumbar spondylosis with arthritic changes consistent with her age,” and had undergone a “satisfactory cervical and lumbar diskectomy [the surgical procedure] with fusions and no complications or resultant radiculopathy, myelopathy, or nerve root compression noted.” Dr. Turner concluded that McDonald’s condition was “secondary to the normal aging process” and found “no evidence of any significant impairment.” He opined that “there is no reason that oral analgesics and anti-inflammatory therapy would not be effective” and “provide[d] no restrictions or limitations that would preclude full-time work activity.” In a letter dated January 26, 2006, Hartford informed McDonald that, following the appeal, it appeared that she “at a minimum retained] the functional capacity for sedentary-type work activity” and therefore did not meet the policy’s definition of “disabled.”
McDonald again requested that Hartford reconsider its decision, and she submitted additional documentation, including letters from McDonald regarding her pain; a job description for her position at B & B; Dr. Hubbell’s February 2006 letter regarding her subjective pain; and a MRI of her cervical spine from October 2005, which she had previously submitted. Hartford hired another UDC orthopedic surgeon, Dr. Robert Pick, to conduct the second review. Dr. Pick reviewed all of the previous evidence submitted by McDonald.5 Dr. Pick spoke with Dr. Burger, who reported only that her last visit with McDonald was in November 2004 and she did not have access to McDonald’s records, as they had been affected by Hurricane Katrina. Dr. Pick also spoke with Dr. Hub-bell, who stated that “the only objective finding is the MRI,” and when asked if McDonald could engage in sedentary work, replied: “Instead of guessing, get a Functional Capacity Evaluation.” Dr. Pick called Dr. Steck and spoke with him after hours when he did not have access to McDonald’s records; Dr. Steck reported from general memory that McDonald could engage in sedentary work for eight hours a day.
From his review of the documents and his conversations with the treating physicians, Dr. Pick concluded that “there is no documentation or substantation [sic] that Ms. McDonald cannot engage in at least the sedentary — light work category on full-time basis.” He observed that the file indicated McDonald had “degenerative arthritic changes of the cervical and lumbar spine”; her surgery had been successful; and she had “satisfactory postoperative progress and recovery with improvement in [her] preoperative symptoms.” He noted that “no specific intervention has been recommended other than conservative care” and “the case file does not document any substantive objective orthopedie/mus-culoskeletal findings that would prevent Ms. McDonald from engaging in full-time work activities in at least the sedentary— light work category....” He concluded that McDonald’s file did not “establish a complete impairment from gainful employment.” Based on Dr. Pick’s review and conclusions, Hartford sent McDonald a letter on April 26, 2006, declining to change the prior decision to deny benefits. The letter stated that it was “final and binding” and that McDonald had “exhausted all [administrative remedies.”
*605
D. Litigation
McDonald filed suit against B & B 6 and Hartford on June 12, 2006, under ERISA. McDonald alleged that Hartford failed to pay benefits under the insurance policy as required by 29 U.S.C. § 1132(a)(1)(B) and that Hartford breached its fiduciary duties under 29 U.S.C. § 1104(a). McDonald and Hartford both filed motions for summary judgment. The district court determined that the administrative record was incomplete because Hartford had relied upon Dr. Pick’s discussion with Dr. Steck after hours, when Dr. Steck was at the health club and did not have access to McDonald’s records. On March 28, 2008, the district court remanded to Hartford for further clarification of Dr. Steek’s position, with instructions that the remand was “for the limited purpose of interviewing and/or deposing Dr. Steck to clarify his position as regards [McDonald’s] limitations.”
Following another interview with Dr. Steck, Hartford noted that his opinion was that “McDonald’s ongoing complaints of pain are subjective in nature” and he could not determine at this stage whether she could work. In a November 21, 2008, letter to McDonald’s attorney, Hartford determined that any new information from the interview of Dr. Steck was “not compelling based on the totality of the facts presented” and declined to change its prior decision. McDonald re-urged her motion for summary judgment, as did Hartford.
On October 27, 2007, before the district court issued its remand order, McDonald received a Declaration of Disability from the Social Security Administration (SSA award). McDonald did not inform the district court of the award at the time, but she did forward the award, with the accompanying letter of reasons, to Hartford shortly after the case was remanded and requested that Hartford consider the award. In its November 21, 2008, letter, Hartford did not mention the award and the record does not show if Hartford included the award in its investigation of McDonald’s claim. The first time that McDonald informed the district court of the SSA award was in her re-urged motion for summary judgment.
The district court granted summary judgment for Hartford. In its final order on April 29, 2009, the district court declined to give controlling weight to the opinions of McDonald’s treating physicians and found that “Hartford conducted a thorough and reasonable analysis of McDonald’s disability, basing its initial decision and two appeal decisions on the opinions of three separate, independent physicians.” The district court noted that McDonald admits her job is “primarily sedentary” and that she “gets help filing to avoid bending and stooping.” Furthermore, the district court pointed out that “both her treating physicians and Hartford’s physicians have agreed she should be able to perform [sedentary work].” The district court rejected McDonald’s argument that Hartford was bound to consider her SSA award — as Hartford had already reached its final decision more than one year prior to the award, it could not have considered the additional information, particularly in light of the district court’s specific instructions limiting the scope of the inquiry on remand. McDonald timely appealed.
II. DISCUSSION
McDonald raises two main points on appeal. She argues that the district court improperly refused to allow her to supplement the administrative record with her SSA award, and she contends that the district court erred in finding that Hart*606ford’s decision to deny benefits was supported by substantial evidence.
A. Supplementation of Administrative Record
McDonald argues that the district court abused its discretion by declining to permit McDonald to enter her SSA award into the administrative record. The SSA award was issued October 23, 2007, more than one year after Hartford issued its final decision in April 2006. McDonald argues that the district court’s remand for further investigation re-opened the administrative process, making it proper to supplement the administrative record with the SSA award. Hartford argues that, given the limited purpose of the remand, there was no obligation for Hartford to consider new evidence outside of the district court’s instructions and the district court acted within its discretion in declining to consider the SSA award. The determination of whether evidence should be included in the administrative record is an evidentiary decision, and we review for abuse of discretion. Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 n. 12 (5th Cir.2007).
When conducting abuse of discretion review of a denial of benefits based on an administrative record, we have generally required that the scope of review be limited to facts known to the plan administrator at the time of the benefits decision. S. Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir.1993). However, we have recognized certain limited exceptions to this rule. See Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir.1999) (en banc) (“To date, th[e] exceptions have been related to either interpreting the plan or explaining medical terms and procedures relating to the claim.”).7 These exceptions have been judged on a case-by-case basis, and we have declined to adopt any per se rules in this area. Cf. Duhon v. Texaco, Inc., 15 F.3d 1302, 1309 (5th Cir.1994).
When compiling the administrative record, the plan administrator must identify what evidence constitutes the administrative record, and the claimant must have “a reasonable opportunity to contest whether that record is complete.” Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, 215 F.3d 516, 521 (5th Cir.2000). While the administrative record is generally limited to “relevant information made available to the administrator prior to the complainant’s filing of a lawsuit and in a manner that gives the administrator a fair opportunity to consider it,” we have attempted to avoid abuse or mistake by allowing “the claimant’s lawyer [to] add additional evidence to the administrative record simply by submitting it to the administrator in a manner that gives the administrator a fair opportunity to consider it.” Id. at 521 & n. 5. We have been clear, however, that “the district court is precluded from receiving evidence to resolve disputed material facts — i.e., a fact the administrator relied on to resolve the merits of the claim itself.” Vega, 188 F.3d at 299. Had the district court not remanded to Hartford for further investi*607gation of Dr. Steck’s opinion, the question of whether the SSA award should be included in the administrative record would be clear: the administrative record closed when McDonald filed suit in June 2006. Cf. Moore, 993 F.2d at 102. The SSA award does not fall into the two acknowledged exceptions: evidence interpreting the plan or explaining medical terms and procedures.
The timing of the remand order complicates the analysis somewhat, for Estate of Bratton suggests that McDonald had the opportunity to offer additional information to Hartford, so long as the submission of new information was conducted “in a manner that gives the administrator a fair opportunity to consider it.” Estate of Bratton, 215 F.3d at 521 n. 5. Assuming without deciding that McDonald could have supplemented the record on remand, she missed her opportunity. The SSA award was issued on October 23, 2007, five months before the district court remanded the case to Hartford on March 28, 2008. Yet McDonald did not bring the SSA award to the district court’s attention until after the conclusion of the remand period, despite at least one opportunity to do so. For example, Hartford moved for reconsideration of the remand order, which McDonald opposed in writing — without mention of the SSA award. McDonald was aware of the district court’s specific instructions on remand but did not ask the district court to expand the scope of the remand to include consideration of the award. The first mention of the SSA award in McDonald’s filings is in her January 23, 2009, reurged motion for summary judgment. In light of the district court’s very specific instructions limiting the scope of the remand and McDonald’s failure to submit the award for consideration at an appropriate time, the district court did not abuse its discretion in refusing to consider the SSA award and in approving Hartford’s decision not to consider the award.
B. Substantial Evidence
We typically follow a two-step process to determine if an ERISA plan administrator has abused its discretion, asking first if the plan administrator’s determination was legally correct; if it is not, we proceed to the second question of whether the decision was an abuse of discretion. Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 n. 2 (5th Cir.2009). However, this process is not rigid; “we may skip the first step if we can more readily determine that the decision was not an abuse of discretion.” Id. Here, we may proceed directly to the second step. McDonald raises several points that she contends either justify a less deferential standard of review or show abuse of discretion by Hartford.
We review a grant of summary judgment in an ERISA case de novo, applying the same standard as the district court. Wade v. Hewlett—Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 537 (5th Cir.2007). The Supreme Court requires that a denial of benefits be reviewed under a de novo standard “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Abuse of discretion is the proper standard for review of “determinations made pursuant to a plan that gives the administrator discretionary authority to determine eligibility,” as this plan does. Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 598 (5th Cir.1994). Where, as here, a challenge to a denial of benefits does not involve the interpretation of plan terms but disputes whether an individual’s conditions qualify as a disability, the inquiry involves factual determinations; therefore, abuse of discretion is the proper standard. See Wade, 493 F.3d at 540.
*608Under an abuse of discretion standard, “[i]f the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary or capricious, it must prevail.” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir.2004). “ ‘Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Corry, 499 F.3d at 398 (quoting Ellis, 394 F.3d at 273). If a decision is made “without a rational connection between the known facts and the decision or between the found facts and the decision,” the decision is arbitrary. Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir.1996). “An administrator’s decision to deny benefits must be ‘based on evidence, even if disputable, that clearly supports the basis for its denial.’ ” Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 342 (5th Cir.2002) (quoting Vega, 188 F.3d at 299). If the administrator’s decision to deny a claim is supported by “ ‘some concrete evidence in the administrative record,’” the administrator did not abuse discretion. Id. (quoting Vega, 188 F.3d at 302). The reviewing court may not substitute its judgment for that of the plan administrator. Wade, 493 F.3d at 541.
1. Stnctural Conflict of Interest
McDonald complains that Hartford’s dual role as insurer and plan administrator gave rise to a conflict of interest that justifies de novo review, rather than abuse of discretion; alternatively, McDonald argues that Hartford’s structural conflict suffices to show abuse of discretion. The Supreme Court recognized in Metropolitan Life Insurance Co. v. Glenn that when “a plan administrator both evaluates claims for benefits and pays benefits claims,” it creates a structural conflict of interest. 554 U.S. 105, 128 S.Ct. at 2348. “If a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115, 109 S.Ct. 948 (internal modification and quotation marks omitted). “If the administrator has a conflict of interest, we weigh the conflict of interest as a factor in determining whether there is an abuse of discretion in the benefits denial, meaning we take account of several different considerations of which conflict of interest is one.” Holland, 576 F.3d at 247 (internal quotation marks omitted). If claimants do not present evidence of the degree of the conflict, the court will generally find that any conflict is “not a significant factor.” Id. at 249 (finding that where claimant “adduced no evidence ... that [administrator’s structural] conflict affected its benefits decision or that it had a history of abuses of discretion,” any conflict was insignificant in abuse of discretion analysis).
Here, the district court considered Hartford’s “mere technically dual role” and determined that abuse of discretion was the proper standard. An examination of the record bears out the district court’s determination: McDonald has not pointed to any specific evidence of a history of abuses of discretion or of how Hartford’s structural conflict of interest may have affected its benefits decision in this particular case. In addition, the record does not show that McDonald attempted to conduct discovery on any potential conflicts of interest. Rather, the record indicates that Hartford conducted nothing less than a “careful investigation” of McDonald’s claim. See Corry, 499 F.3d at 398 n. 11 (finding that any potential structural conflict of interest did not adversely affect plan administrator’s handling of claim where administrator spent over two and a half years reviewing the claim and hired three specialists who gave “clear and unequivocal” opin*609ions). Here, Hartford engaged three outside specialists to review McDonald’s file; McDonald submitted additional documentation twice; and Hartford entertained two appeals. McDonald has failed to put forth any evidence of the degree of the alleged conflict, and she has also failed to show that any structural conflict impacted Hartford’s decision in her case. Therefore, to the extent that Hartford’s dual role as both insurer and plan administrator may create a conflict, that conflict is not a significant factor that would justify a change in the standard of review. The district court did not err in applying an abuse of discretion standard to Hartford’s decision or in concluding that any alleged conflict did not support McDonald’s claim that Hartford abused discretion in denying benefits.
2. Possible Bias by Reviewing Physicians
McDonald argues that because the three reviewing physicians are employed by agencies that contract with Hartford, the physicians were biased in favor of Hartford; therefore, Hartford abused its discretion in relying on their opinions. McDonald points to several federal district court cases that note a potential conflict of interest on the part of UDC, the organization that employs Drs. Turner and Pick, because of its “significant and ongoing relationship” with Hartford. See, e.g., Caplan v. CNA Fin. Corp., 544 F.Supp.2d 984, 991-92 (N.D.Cal.2008) (reviewing Hartford’s denial of claim with “skepticism” because structural conflict of interest accompanied by “reliance on UDC, a company which Hartford knows benefits financially from doing repeat business with it”). McDonald notes that Drs. Turner and Pick have been criticized by district courts for deficient reviews in similar cases. Hicklin v. Hartford Life & Accident Ins. Co., No. CV06-4543, 2007 WL 4729856, at *7-8, *11 (C.D.Cal. Dec. 12, 2007) (criticizing Hartford for “ignoring] the obvious, comb[ing] the record and [taking] selective evidence out of context as a pretext to deny” a claim, detailing misstatements and omissions by Dr. Turner, and describing Dr. Pick’s review as “deficient”). Hartford, in turn, cites several district court cases affirming Hartford’s claim decisions that relied on opinions of UDC physicians. See, e.g., Singley v. Hartford Life & Accident Ins. Co., 497 F.Supp.2d 807, 812 n. 9 (S.D.Miss.2007) (upholding Hartford’s denial of claim even though Hartford used reviewing physicians from UDC, including Dr. Turner); Dowdy v. Hartford Life & Accident Ins. Co., 458 F.Supp.2d 289, 296 n. 9 (S.D.Miss.2006) (same).
While the Fifth Circuit has yet to discuss in great detail the impact of potential physician bias on the ERISA standard of review, we have briefly dismissed similar arguments in the past. For example, in Sweatman v. Commercial Union Insurance Co., 39 F.3d at 601 n. 14, we considered and rejected the argument that reviewing physicians were biased, based solely on their employment with a contracting agency. In that case, the physicians reviewed twenty to thirty files per month for a contracting agency, but the claimant pointed to no evidence to show that the physicians were financially dependent upon the agency or the plan administrator. Id. We noted that “the only way for [plan administrators] to meet [the claimant’s] standard for impartiality would be to seek physicians willing to volunteer their time to review the medical files of disability claimants.” Id. The Seventh Circuit recently examined a similar issue when a claimant argued that de novo review — rather than abuse of discretion— was warranted because the plan administrator used in-house doctors for its file reviews. Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 575-76 (7th Cir.2006). *610The Seventh Circuit held that absent evidence of “any specific incentive [for the in-house doctors] to derail [a] claim,” such as giving the doctors “some specific stake in the outcome of [a] case,” the theoretical argument that “in-house doctors have an inherent conflict in every case” is insufficient to change the standard of review. Id.
Here, McDonald does not appear to have pursued discovery on this issue, nor has she presented the type of specific evidence of bias that would show abuse of discretion or justify a change in the standard of review. While she points to the conclusions of district courts and cites evidence presented in other cases, the record before us contains no documentary or testimonial evidence regarding the financial relationship between Hartford, UDC, and the individual physicians. Furthermore, McDonald does not present any evidence showing an incentive for the doctors to undermine her case in particular. McDonald’s attempts to provide specific evidence of bias fail to rise past the level of conclusory allegations; the district court did not err in finding that Hartford did not abuse its discretion on this point.
3. Lack of Physical Examination
McDonald argues that Hartford abused its discretion by failing to order a new physical examination, or Functional Capacity Examination (FCE), as Drs. Hubbell and Steck recommended during the administrative review process. However, the policy places the burden on the claimant to provide proof of loss — at the claimant’s own expense — including “[objective medical findings which support [the] disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations standardly [sic] accepted in the practice of medicine, for [the] disabling condition(s).” In addition, “the burden is not solely on the administrator to generate evidence relevant to deciding the claim.” Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 335 (5th Cir.2001) (modification and internal quotation marks omitted); Gothard v. Metro. Life Ins. Co, 491 F.3d 246, 249 & n. 7 (5th Cir.2007) (declining to require a physical examination prior to denial of claim and citing cases in support); cf. Holland, 576 F.3d at 250 (declining to require administrator to consult with vocational expert, and quoting Duhon, 15 F.3d at 1309, for proposition that a “reviewing court [may] decide, on a case-by-case basis, whether under the particular facts the plan administrator abused his discretion by not obtaining the opinion of a vocational rehabilitation expert”). McDonald fails to show abuse of discretion on this point.
L Lack of Deference to Treating Physicians’ Opinions
McDonald contends that Hartford abused its discretion by improperly discounting the opinions of her treating physicians. However, the Supreme Court has explicitly disapproved of a “treating physician” rule in the ERISA context and held that “plan administrators are not obliged to accord special deference to the opinions of treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). Administrators do not bear “a heightened burden of explanation ... when they reject a treating physician’s opinion.” Id. at 830, 123 S.Ct. 1965. “So long as the [p]lan [a]dministrator’s decision is rationally related to the evidence, we do not require the [p]lan [administrator to credit a particular area of expertise when deciding on an applicant’s prognosis.” Holland, 576 F.3d at 249, 250 (quoting language from Black & Decker, 538 U.S. at 834, 123 S.Ct. 1965, that courts may not “impose on plan administrators a discrete burden of explanation when they credit reliable evidence *611that conflicts with a treating physician’s evaluation”).
While the record does contain some evidence indicating that McDonald suffers from some permanent health issues,8 Hartford’s decision to deny benefits also finds support in the record. The fact that Hartford’s support comes from reviewing physicians does not render its decision arbitrary or capricious; even McDonald’s physicians have not expressed consistent opinions regarding the extent of her disability and her ability to perform sedentary work.
For example, during the remand period, when Hartford re-interviewed Dr. Steck— the neurosurgeon who performed McDonald’s surgery — he did not give a clear “yes” or “no” answer when asked about the extent of McDonald’s disability. The interviewer asked: “Is there anything medically really why [McDonald] could not have done [sedentary work] three months post-op?” Dr. Steck replied:
We are dealing basically with subjective complaints but they are based on objective data in that she has degenerative disc disease in the lumbar spine[;] she has documented lumbar disc herniation that was bad enough to require a lumbar decompression fusion, and I have dealt with enough of these patients [to know] that there will be a significant subset who will not return to any type of employment due to complaints of pain and there is no way I can prove that she doesn’t have pain, we could always say well I don’t see why she can’t work,
most people could but not everybody ....
The objective data is that, yes, she did have surgery, the subjective component is that although she is neurologically normal and everything looks just fine, although many people in this situation would be able to work although she tells me that she actually is better from the surgery, she had it, but doctor I just hurt too much to work. Based on that I just can’t sign a letter or do a dictation saying that I think she can work,
(emphasis added). While Dr. Steck expressed concern for McDonald’s subjective complaints of pain and noted that the subjective complaints were based objectively on her degenerative disc disease, he also made the statement that “she is neurologically normal and everything looks just fine.”
When Hartford reached its final decision, it had consistent reports from the three reviewing physicians indicating that McDonald did not meet the definition of “disabled”; it had Dr. Steck’s mixed statement; and it had Dr. Hubbell’s letter dated February 13, 2006, which recommended that McDonald receive additional pain treatment and indicated: “I know that she can’t perform full-time work at this time, but I believe that if her cervical pain were resolved, she would be able to return to at least twice as much work as she is able to do today if not full-time work.” Hartford’s decision to deny benefits has clear support in the administrative record, and the deci*612sion is rationally related to the evidence Hartford had before it at the time of the decision. See Holland, 576 F.3d at 249. “[T]he job of weighing valid, conflicting professional medical opinions is not the job of the courts ... [but rather the job of] the administrators of ERISA plans,” Cor-ry, 499 F.3d at 401, and therefore McDonald’s argument that Hartford failed to give adequate weight to the opinions of her treating physicians must fail. Hartford did not abuse its discretion in adopting the opinions of the reviewing physicians over the treating physicians.
5. Lack of Consideration of Subjective Complaints of Pain
McDonald argues that Hartford abused its discretion by failing to give adequate weight to her consistent complaints of pain. To support her argument, McDonald relies on Audino v. Raytheon Company Short Term Disability Plan, 129 Fed.Appx. 882 (5th Cir.2005) (per curiam), where we reversed a summary judgment in favor of a plan administrator that had denied benefits to a claimant who complained of pain. In Audino, we found an abuse of discretion because the administrator
ignored [the claimant’s] consistent complaints of pain as subjective, either minimized or ignored objective evidence of disability corroborating those complaints, and concluded that the evidence did not show an inability to do her job functions without analyzing the effect that her conditions would have on her ability to perform her specific job requirements.
129 Fed.Appx. at 885. However, in that case the claimant presented specific evidence of misstatements and oversights by the reviewing physicians that the plan administrator relied upon in denying the claim. Id. at 884-85 (noting that one physician misstated objective test results, while another mentioned exam results in a summary of evidence but failed to discuss those results in analysis of whether claimant was disabled).
More applicable than Audino is the case of Corry v. Liberty Life Assurance Co. of Boston, where we addressed in detail whether an administrator’s review adequately considered a claimant’s subjective complaints of pain. 499 F.3d at 399-401. There, the claimant’s experts opined that she was disabled due to fibromyalgia — a diagnosis reached by reliance on the claimant’s subjective reports of pain. Id. at 401. The plan administrator ultimately rejected the claimant’s assertion that she was disabled, relying on the opinions of three outside reviewing physicians. Id. All three reviewing physicians discussed the claimant’s subjective complaints and her previous diagnosis of fibromyalgia in their analyses; yet they each ultimately concluded that no medical evidence existed establishing a disability. Id. In Corry, we concluded that this constituted a “battle of the experts,” where the administrator was “vested with discretion to choose one side over the other”; therefore, we rejected the argument that the administrator “fail[ed] to consider and give proper weight to relevant evidence” of subjective pain. Id.
Here, Hartford and its reviewing physicians clearly “considered, evaluated, and addressed” McDonald’s subjective complaints of pain; however, the reviewing physicians still reached the conclusion that McDonald’s administrative record did not contain objective medical evidence of disability. Corry, 499 F.3d at 401. The denial letters indicate that Hartford considered her subjective complaints. In the first denial letter, Hartford acknowledged McDonald’s continuing neck pain and her “difficulties with pain” but concluded that no neurological abnormalities were present and that the evidence did not “support a functional impairment that would preclude *613[her] from performing the material and substantial duties of [her] regular occupation on a full-time basis.” When denying her first appeal, Hartford informed McDonald that:
we considered your self-reported symptoms and to what extent the findings on physical examination and testing results confirm the symptoms. We also considered the impact the findings would have as far as your ability to function on a daily basis and how it would continuously affect your ability to perform your regular occupational work activity on a full-time basis.
In its final denial letter, Hartford mentioned that it had considered letters from McDonald herself and from Dr. Hubbell detailing her subjective complaints. In addition, the administrative record contains notes from an interview with McDonald, detailing the impact of her pain on her daily life at work and at home.
The reviewing physicians also clearly considered and addressed McDonald’s subjective complaints. Dr. LeForce, the initial reviewing physician, noted “complaints of neck and low back pain,” and “continued neck pain.” On the first administrative appeal, Dr. Turner discussed McDonald’s reports that she suffers radiating low back pain, aggravated by sitting and walking and partially relieved by rest, as well as chronic neck pain. Finally, Dr. Pick considered evidence that McDonald suffered from “chronic pain” and clinical notes from her treating physicians regarding her subjective complaints, including: “a history of an insult with severe low back pain and radiating right pain and recent onset numbness in her upper extremities”; “lumbar pain as well as leg pain”; “[s]he states the pain is getting worse”; “[s]he still has some low back pain, some buttock pain, some chronic neck pain, but all those better than preop.” All three reviewing physicians considered McDonald’s subjective complaints but ultimately concluded that these subjective complaints were insufficient to support a finding of disability.
Unlike in Audino, the reviewing physicians did not ignore McDonald’s complaints but included them in their analyses. McDonald argues that the reviewing physicians “mischaracterized the results of her MRIs,” but even Dr. Steck, her treating physician, stated that McDonald was “neurologically normal.” Any difference of opinion between the reviewing and treating physicians on the interpretation of her MRIs falls into Hartford’s area of discretion; McDonald does not point to any affirmative misstatements of objective test results of the kind presented in Audino.
While Hartford’s conclusions conflict with Dr. Hubbell’s evaluation of McDonald’s condition, Dr. Steck’s final interview with Hartford on remand contains language that supports the conclusion that the record did not contain objective medical evidence of disability. Hartford has discretion in this battle of experts, and in the absence of evidence that Hartford failed to consider McDonald’s complaints of pain, Hartford was within its discretion to accept the opinions of its three qualified medical experts. Hartford’s decision was neither arbitrary nor capricious on this point.
6. Insufficient Evidence to Support Denial of Claim
Finally, and more generally, McDonald complains that Hartford “cherry-picked” quotes and facts out of the administrative record to support its decision to deny her claim for benefits. However, under Fifth Circuit law, Hartford has discretion under the plan to investigate the claim and draw the conclusions it deems proper. “The law requires only that substantial evidence support a plan fiduciary’s decisions, including those to deny or to terminate benefits, not that substantial ev-*614idenee (or, for that matter, even a preponderance) exists to support the employee’s claim of disability.” Ellis, 394 F.3d at 273.
Here, Hartford solicited the medical opinions of three separate physicians. Drs. Turner and Pick are both board certified orthopedic surgeons, “specialists and qualified experts in [a] field[] specifically related” to McDonald’s symptoms; at least two of the three physicians reached their conclusions independently.9 Corry, 499 F.3d at 402. In Corry, we found it “indisputable that the medical opinions of [the plan administrator’s] three consulting physicians ... constitute substantial evidence supporting [the disability decision].” Id. In addition to the opinions of the three reviewing physicians, the administrative record contains other evidence in support of Hartford’s decision: in particular, Dr. Steck’s statement that McDonald was “neurologically normal and everything looks just fine.” Furthermore, McDonald admitted that she gets help to fulfill the duties of her job and that her employer has been cooperative and flexible. Hartford’s decision does not need to be correct; it simply must not be arbitrary. Cf. Gothard, 491 F.3d at 250 (“MetLife’s decision may not be correct, but we cannot say that it was arbitrary.”). On the administrative record, Hartford’s decision to deny her claim was supported by substantial evidence and there was no abuse of discretion.
III. CONCLUSION
For the above reasons, we AFFIRM.
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.
. The policy defines "gainfully employed” as "the performance of any occupation for wages, renumeration or profit, for which you are qualified by education, training or experience on a full-time or part-time basis, and which provides you with substantially the same earning capacity as your former earning capacity prior to the start of your disability.”
. Degenerative disc disease is also known as spondylosis or osteoarthritis. Stedman’s Medical Dictionary defines spondylosis as "Ankylosis of the vertebra; often applied non-specifically to any lesion of the spine of a degenerative nature.” Stedman’s Medical Dictionary 1813 (28th ed.2006). Stedman's describes osteoarthritis as: “Arthritis characterized by erosion of articular cartilage, either primary or secondary to trauma or other conditions, which becomes soft, frayed, or thinned with eburnation of subchondral bone and outgrowths of marginal osteophytes; pain and loss of function result; mainly affects weight-bearing joints, is more common in old people and animals.” Id. at 1388. “Ankylosis” is defined as "[sjtiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint; fusion.” Id. at 95.
. In this letter, Dr. Hubbell seems to advocate strongly for McDonald to receive cervical facet radiofrequency treatment, and he complains that McDonald's health care provider (Coventry Health Care) failed to allow additional testing that would objectively demonstrate her need for this type of treatment. However, this advocacy seems misplaced, as Hartford — the disability benefits provider — is unrelated to Coventry — the health insurance provider.
. According to Hartford's January 25, 2006, denial letter, McDonald submitted:
. The record does not explicitly show whether Dr. Pick reviewed Dr. LeForce’s or Dr. Turner's evaluations. He did not specifically list the other doctors' reports in his review of McDonald's file, and Hartford did not discuss this issue in its final denial letter. However, Hartford explicitly mentioned in the denial letter from the first appeal that Dr. Turner did not review Dr. LeForce's conclusions; this discrepancy raises the question whether Dr. Pick had access to the other reviewing physicians' conclusions.
. McDonald later voluntarily dismissed B & B.
. Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2350, 171 L.Ed.2d 299 (2008), abrogated Vega to the extent that Vega adopted a ‘'sliding-scale” methodology of weighing conflicts of interest. See Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 n. 3 (5th Cir.2009). However, we have maintained that "much of our 'sliding scale1 precedent is compatible with the Supreme Court's newly clarified 'factor' methodology, and Glenn does not supercede that precedent to the extent it reflects the use of a conflict as a factor that would alter the relative weight of other factors.” Id. Therefore, Vega continues to be good law for propositions unrelated to the "sliding scale” method of reviewing alleged conflicts of interest.
. McDonald relies on a letter from Dr. Hub-bell contending that it is "very unlikely that [McDonald] will be able to return to work in any type of gainful employment” and concluding that she is "totally and permanently disabled due to her degenerative condition of her cervical and lumbar spine causing her to have persistent pain and muscle spasms.” This letter was written on August 21, 2007, and forwarded to Hartford on September 4, 2007. However, as discussed above, the administrative record closed in June 2006, when McDonald filed suit, and McDonald did not request that the letter be included in the record during the remand. Therefore, this letter from Dr. Hubbell is not part of the administrative record and we cannot consider it when analyzing whether Hartford acted arbitrarily or capriciously.
. As discussed above, the record does not explicitly show whether Dr. Pick reviewed Dr. LeForce's or Dr. Turner’s evaluations.
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PER CURIAM: *
Appellant fails to address in his brief to this court any errors in the district court’s opinion and order dismissing appellant’s suit. Accordingly, we grant the motion of appellees for summary affirmance.
The judgment of the district court is therefore AFFIRMED.
Pursuant to 5th Cm. 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Dasta appeals the district court’s order denying relief on his complaint filed pursuant to 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). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Dasta v. Shearin, No. 1:08-cv-00387-AMD, 2009 WL 2902739 (D. Md. filed Sept. 8, 2009). 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:
Cecil Simmons seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. Simmons, who filed a motion for reconsideration with the district court pursuant to Fed.R.Civ.P. 59(e) prior to filing his notice of appeal, requests only that this court remand the case to the district court so he may re-file objections to the magistrate judge’s report and recommendation after his initial objections were destroyed in the mail. However, the district court has granted Simmons’s motion and given him the opportunity to file his objections. Accordingly, we dismiss the appeal 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.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Perry Brown appeals the district court’s final order of judgment entered after a jury returned a defense verdict in Brown’s civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm. Brown v. Maryland, No. 8:07-cv-01956-PJM (D.Md. Feb. 23, 2009). 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Harris appeals a district court order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). The district court concluded Harris was not entitled to a reduction because after considering Amendment 706 to the Sentencing Guidelines, Harris’ range of imprisonment remained the same, the mandatory minimum sentence. We have reviewed the record and find no error. Accordingly, we affirm. We deny Harris’ motion for appointment of counsel. 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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PER CURIAM: *
Alex Jackson, a Louisiana state prisoner, filed this 42 U.S.C. § 1983 action against his jailors. The district court— upon the magistrate judge’s 28 U.S.C. § 1915A recommendation — dismissed Jackson’s case for failure to state a claim. Jackson appeals, and we affirm.
*624I. BACKGROUND
Jackson and another inmate — James Hayes — got into a cellblock scuffle on the night of November 2, 2008. The guards broke it up by tackling Jackson off of Hayes. Jackson requested emergency medical care to treat some swelling, but the prison officials made him wait until morning to see a doctor. He also demanded an immediate transfer to a safer prison' — one closer to his hometown.
In the aftermath of the fight, both Jackson and Hayes admitted to fighting in violation of jailhouse rules. The prison, however, assigned an investigator to take a closer look. Hayes eventually cracked during interrogation, explaining that he and Jackson had staged the fight. Jackson wanted to move to a prison closer to his home, so he offered Hayes $100 to put on the show. According to Hayes, Jackson hit himself — causing the swelling — to make the dramatic altercation more authentic.
His jailors issued Jackson a disciplinary report, charging self-mutilation, fraud (lying), and bribery. At a hearing Jackson denied the charges but offered no substantive defense. The disciplinary chairwoman found him guilty on all counts. The punishment included eight dollars of restitution, no phone for two months, and loss of 55 days of good-time credit.
Jackson filed this § 1983 claim in federal court. He alleged that the guards: (1) had failed to protect him during the fight; (2) wrongfully had delayed medical treatment; (3) had prosecuted him maliciously at the disciplinary hearing; (4) had denied him adequate procedures at the hearing; and (5) have since retaliated against him for filing a complaint. Jackson also attached several pendent state law claims.
Pursuant to 28 U.S.C. § 1915A, the magistrate judge recommended dismissal of the action as frivolous and for failure to state a claim.1 In particular, Heck v. Humphrey2 barred Jackson from recovering damages on the failure to protect claim, unless he first overturned the disciplinary conviction.3 The other claims had no merit. The district court adopted the magistrate judge’s report and dismissed for failure to state a claim.
Jackson appeals, urging that Heck does not bar all of his allegations. According to Jackson, the Supreme Court has silently overruled the 5th Circuit case applying Heck to prison disciplinary convictions.4 Jackson misreads the district court order, which held that Heck bars only one of his six claims. This court, however, liberally construes pro se filings.5 Read fairly, *625Jackson’s brief contests the negative outcome on all of his claims. We understand Jackson not only to question Heck’s applicability to the failure to protect claim but also to challenge the district court’s order as a whole.6
II. ANALYSIS
Our caselaw is inconsistent as to whether we must review a district court’s § 1915A dismissal de novo or for abuse of discretion.7 We need not resolve the discrepancy, though, as Jackson’s appeal fails under any standard of review.
A. Failure to Protect
Jackson alleges that the guards did not break up the fight fast enough, causing him injury. To succeed on this damages claim, Jackson would have to show that inmate Hayes attacked him. Jackson’s prison disciplinary proceeding found that Jackson had staged the phony fight. Therefore, a victory on Jackson’s § 1983 damages claim necessarily would imply the invalidity of his otherwise undisturbed disciplinary conviction. As our en banc court explained in Clarke v. Stalder: “A prisoner ... cannot bring a § 1983 action seeking damages ... based on a ‘conviction’ until that ‘conviction has been ... declared invalid ... if a favorable judgment would ‘necessarily imply’ the invalidity of the prisoner’s ‘conviction’ ....”8 Of course, “[a] ‘conviction,’ for the purposes of HecJc, includes a ruling in a prison disciplinary proceeding that results in a change to the prisoner’s sentence, including loss of good-time credits.”9
Jackson contends that the Supreme Court decision in Wilkinson v. Austin10 silently overturned our Clarke rule. He is wrong. Among other reasons, Wilkinson involved neither a prison disciplinary proceeding of this kind nor a damages claim.
B. Failure to Treat
Jackson alleges that the prison staff delayed treatment of his serious injuries. The Eighth Amendment forbids prison officials from displaying deliberate indifference toward prisoners’ medical *626needs.11 Mere negligence, though, is not enough.12 Rather, “the legal conclusion of deliberate indifference ... must rest on facts clearly evincing wanton actions on the part of the defendants.”13 Jackson makes no such showing.
The guards had Jackson wait until morning to see the doctors. After examining him, the medical team noted Jackson’s swollen cheek, sore wrist, and bruised knee. X-rays of his face, back, and knee revealed no breaks or other serious damage. A doctor at a follow-up exam explained that the patient would need no treatment. Jackson has not demonstrated “unnecessary and wanton infliction of pain repugnant to the conscience of mankind,” 14 and, in any event, a prisoner cannot recover for mere delay in medical treatment unless harm results.15
C. Malicious Prosecution
Jackson suggests that the prison officials maliciously and without cause instituted disciplinary proceedings against him. “There is no federal constitutional claim based on the tort of malicious prose-ration.”16 Because the disciplinary board found Jackson guilty, Heck likely would bar the claim anyway.
D. Inadequate Procedure at Disciplinary Hearing
Jackson baldly states that — in losing his good-time credits at the disciplinary hearing — he did not receive constitutionally required procedural protections: written notice of the evidence against him and the right to call witnesses in his defense. This court has suggested that prisoners may bring a § 1983 claim for damages for the deprivation of civil rights relating to disciplinary procedures, as long as the prisoner does not challenge the substantive result of the hearing.17 The damages sought must not “encompass the injury of being deprived of good-time credits, and must stem solely from the deprivation of civil rights.”18 A fine line, to be sure, but one that we need not in this case negotiate.
Even if Jackson could state a cognizable claim, he does not do so here. His *627conclusory declaration that his jailors create an atmosphere where a prisoner may be deprived of procedural due process does not “raise [his] right to relief above the speculative level.”19 Although not necessary to our decision, the record reflects that Jackson’s claim is factually frivolous: he did receive advance notice of both the charges and evidence against him; and he did not seek to call witnesses at his hearing.
E. Post-Incident Retaliation
Jackson claims that the prison guards have retaliated against him since he filed a complaint about their handling of the fight. He says they search his cell, steal from him, and verbally threaten him. Of course, prison officials “may not retaliate against or harass an inmate for ... complaining to a supervisor about a guard’s misconduct.”20 Jackson, though, “alleges no factual basis for that mere conclusionary allegation. Standing alone, the contention is frivolous.”21
Nor does Jackson have a valid constitutional claim for underlying searches, thefts, or threats. First, “prisoners have no legitimate expectation of privacy,” so— absent cruel or unusual circumstances— the Constitution does not prohibit even unreasonable cell searches.22 Second, as long as the state provides for a meaningful post-deprivation remedy (which Louisiana does23), then no constitutional violation occurs when a state employee negligently or intentionally deprives a prisoner of property.24 And third, freestanding “claims of verbal abuse are not actionable under § 1988.”25
F. State Law Claims
Because Jackson states not one valid federal claim, the district court properly declined jurisdiction over his Louisiana causes of action.26
*628III. CONCLUSION
Jackson’s complaint has no legal merit. We AFFIRM the district court’s dismissal of all claims. Jackson’s motions to supplement his brief and for appointment of counsel27 — as well as any other outstanding motions — are DENIED as moot.
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.
. The magistrate judge also mentioned 28 U.S.C. § 1915(e)(2)(B) as an alternative basis for dismissal, which does not change our analysis of this case. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003).
. 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
. See id. at 486-87, 114 S.Ct. 2364 ("We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determina-lion, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.”).
. See Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir.1998) (en banc) ("A 'conviction,' for purposes of Heck, includes a ruling in a prison disciplinary proceeding that results in a change to the prisoner’s sentence, including the loss of good-time credits.”).
. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995) ("[W]e liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to *625parties represented by counsel.... ”); Morrow v. FBI, 2 F.3d 642, 643 n. 2 (5th Cir.1993).
. Jackson has sought leave of the court to supplement his brief in order specifically to challenge the entire district court order. By instead liberally construing Jackson's original submission, the court effectively reaches the same result as if we had granted leave to supplement. In other words, any supplement would be redundant.
. We have held that “we will ... employ the ... de novo standard to review dismissals pursuant to § 1915A.” Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998). Two months previously, though, we had held that “[w]e review the magistrate’s determination that [the] complaint is frivolous [under § 1915A] for an abuse of discretion.” Martin v. Scott, 156 F.3d 578, 580 (5th Cir.1998). Subsequent cases have alternated between the two standards. See, e.g., Velasquez, 329 F.3d at 421 (“The standard of review of dismissals under 28 U.S.C. § 1915A ... is de novo.”); White v. Fox, 294 Fed.Appx. 955, 957 (5th Cir.2008) (unpublished) (“This court reviews the district court’s dismissal as frivolous under § 1915A for an abuse of discretion.”). The White court rightly noted that "fwjhen panel opinions are in conflict, the earlier decision controls.” See White, 294 Fed.Appx. at 957 n. 1 (citing United States v. Miro, 29 F.3d 194, 199 n. 4 (5th Cir.1994)). Our earlier decision (Martin), though, took the standard of review for granted, whereas the later decision (Ruiz) embarked on a lengthy analysis to determine the proper review. Confounding the problem, the district court in this case dismissed under § 1915A for "failure to state a claim.” Martin’s rule may apply only to dismissals as "frivolous” — with Ruiz's rule applying to failures to state a claim.
. 154 F.3d at 189 (citing Heck ).
. Id.
. 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174(2005).
. Estelle v. Gamble, 429 U.S. 97, 103-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
. Id. at 106, 97 S.Ct. 285.
. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.1985) (internal quotations and citations omitted).
. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.1997).
. See Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir.1993) (citing cases).
. Williams v. Dretke, 306 Fed.Appx. 164, 166 (5th Cir.2009) (unpublished) (citing Castellano v. Fragozo, 352 F.3d 939, 953-54 (5th Cir.2003) (en banc)).
. Mahogany v. Stalder, 242 Fed.Appx. 261 (5th Cir.2007) (unpublished); White, 294 Fed.Appx. at 961 ("A claim for damages based on a failure to receive a written statement of the evidence relied on in a prison disciplinary proceeding is cognizable under § 1983.”); Randle v. Woods, 299 Fed.Appx. 466, 468 (5th Cir.2008) (unpublished) (“An inmate may still be entitled to nominal monetary damages if he proves that the procedures in a disciplinary hearing were wrong, even if the substantive result — i.e. the deprivation of good-time credits — is not.”). See generally Clarke, 154 F.3d at 189 ("Claims for damages and declaratory relief challenging the procedures used in, but not the results of, prison disciplinary proceedings are similarly not cognizable in a § 1983 action until the relevant 'conviction' has been reversed, expunged, or otherwise declared invalid if a favorable judgment would 'necessarily imply' the invalidity of the prisoner’s 'conviction' in the disciplinary proceeding or the length of the prisoner’s confinement.”).
. Mahogany, 242 Fed.Appx. at 263 (citing Heck) (quotations omitted).
. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "It is well-established that pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. However, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusoty allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.2002) (citations and quotation marks omitted).
. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995).
. Moody v. Baker, 857 F.2d 256, 258 (5th Cir.1988).
. Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
. Hodge v. B.B. "Sixty” Rayburn Corr. Ctr., 2008 WL 4628586, *7, 2008 U.S. Dist. LEXIS 88139, *22 (E.D.La.2008) (citing Marshall v. Norwood, 741 F.2d 761, 764 (5th Cir.1984)).
. See Hudson, 468 U.S. at 533, 104 S.Ct. 3194 ("[W]e hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.”).
. See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir.2002).
. Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.1999) ("When a court dismisses all federal claims before trial, the general rule is to dismiss any pendent claims.”). We construe Jackson's state law claims to include a putative cause of action against inmate Hayes, as he likely did not act under the color of law. See 42 U.S.C. § 1983. However, to the extent that Jackson alleges Hayes’s conspiratorial involvement with the prison guards, the claim would fail for the same reasons that the other federal claims did.
. Even if the motion for appointment of counsel were not moot, we would deny it — as Jackson's case is neither complex nor exceptional. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.1987).
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PER CURIAM: *
Appellant fails to address in his brief to this court any errors in the district court’s opinion and order dismissing appellant’s suit. Accordingly, we grant the motion of appellees for summary affirmance.
The judgment of the district court is therefore AFFIRMED.
Pursuant to 5th Cm. 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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MEMORANDUM **
Santo Wahyudi, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s 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, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006), and we deny the petition for review.
The agency denied Wahyudi’s asylum application as time-barred. Wahyudi does not challenge this finding in his opening brief.
Substantial evidence supports the agency’s finding that the physical harm and threats Wahyudi suffered in Indonesia did not rise to the level of past persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (harassment, threats, and one beating did not compel a finding of past persecution). Substantial evidence further supports the agency’s finding that Wahyudi failed to establish a
*722clear probability of future persecution because Wahyudi remained unharmed in Indonesia for four years following the last incident, and he has similarly-situated moderate Muslim family members who continue to remain in Indonesia without harm. See Lim v. INS, 224 F.3d 929, 938 (9th Cir.2000).
Wahyudi does not raise any arguments in his opening brief regarding the denial of CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues which are not specifically raised and argued in a party’s opening brief are waived).
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 **
Eldridge Woy, and his wife and son, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their application for asylum, withholding of removal, and protection under *726the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003), and we deny the petition for review.
The BIA denied petitioners’ asylum application as time barred. Petitioners do not challenge this finding.
Substantial evidence supports the agency’s determination that petitioners’ experiences of threats, discrimination, and harassment do not rise to the level of past persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir.2009). Substantial evidence also supports the agency’s determination that petitioners failed to establish a clear probability of persecution because, even if the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004) applies to petitioners, Seventh Day Adventist Christians, they have not demonstrated the requisite individualized risk of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th Cir.2003); see also Wakkary, 558 F.3d 1049 (“[A]n applicant for withholding of removal will need to adduce a considerably larger quantum of individualized-risk evidence to prevail[.]”). Further, the record does not compel the conclusion that there is a pattern or practice of persecution of Christians in Indonesia. See Wakkary, 558 F.3d at 1060-62. Accordingly, petitioners’ withholding of removal claim fails.
Substantial evidence also supports the agency’s determination that petitioners are not entitled to CAT relief because they failed to establish it is more likely than not that they will be tortured upon return to Indonesia. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003).
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 **
Francisco Orejel-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. 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 questions of law, including claims of due process violations due to ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
We agree with the BIA that Orejel-Garcia’s motion failed to demonstrate that the performance by former counsel resulted in prejudice. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826-27 (9th Cir.2003) (no prejudice where motion failed to present plausible grounds for relief). We reject Orejel-Garcia’s contention that the BIA utilized an improper standard in its prejudice determination. See id.
To the extent Orejel-Garcia contends that the BIA failed to consider some of the evidence he submitted with the motion to reopen, he has not overcome the presumption that the BIA did review the record. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Eldridge Woy, and his wife and son, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their application for asylum, withholding of removal, and protection under *726the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003), and we deny the petition for review.
The BIA denied petitioners’ asylum application as time barred. Petitioners do not challenge this finding.
Substantial evidence supports the agency’s determination that petitioners’ experiences of threats, discrimination, and harassment do not rise to the level of past persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir.2009). Substantial evidence also supports the agency’s determination that petitioners failed to establish a clear probability of persecution because, even if the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004) applies to petitioners, Seventh Day Adventist Christians, they have not demonstrated the requisite individualized risk of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th Cir.2003); see also Wakkary, 558 F.3d 1049 (“[A]n applicant for withholding of removal will need to adduce a considerably larger quantum of individualized-risk evidence to prevail[.]”). Further, the record does not compel the conclusion that there is a pattern or practice of persecution of Christians in Indonesia. See Wakkary, 558 F.3d at 1060-62. Accordingly, petitioners’ withholding of removal claim fails.
Substantial evidence also supports the agency’s determination that petitioners are not entitled to CAT relief because they failed to establish it is more likely than not that they will be tortured upon return to Indonesia. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003).
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 **
Asraf Uz Zaman, a native and citizen of Bangladesh, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004), we deny in part and dismiss in part the petition for review.
*732The BIA did not abuse its discretion in denying Zaman’s motion to reopen because the motion was filed more than two years after the BIA’s order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2); see also Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (motion to reopen based on pending 1-130 petition may be granted if, inter alia, the motion is timely filed), and Za-man failed to demonstrate changed circumstances in Bangladesh to qualify for the regulatory exception to the filing deadline, see 8 C.F.R. § 1003.2(e)(3)(ii); see also Malty, 381 F.3d at 945 (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”).
We lack jurisdiction to review Za-man’s contention that the filing deadline should have been tolled because he failed to raise that issue before the BIA and thereby failed to exhaust his administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
To the extent Zaman contends that the BIA should have invoked its sua sponte authority to reopen proceedings, we lack jurisdiction. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
Zaman’s remaining contentions are unavailing.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8476862/
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MEMORANDUM **
Maria Ester Mendez and Bélica Marisol Garcia-Mendez, mother and daughter and natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing an appeal from an immigration judge’s decision denying their applications for relief under the Nicaraguan and Central American Relief Act (“NACARA”), cancellation of removal, and asylum, withholding of removal, *747and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.
We lack jurisdiction, under statute, to review the agency’s determination that Mendez was not eligible for NACARA relief because she failed to establish that she timely registered for ABC benefits, and Mendez does not raise a legal or constitutional question that invokes our jurisdiction. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 309(e)(5)(C)(i)-(ii), Pub.L. No. 104-208, 110 Stat. 3009 (1996), as amended by Nicaraguan Adjustment and Central American Relief Act of 1997 § 203(a)(1), Pub.L. 105-100, 111 Stat. 2160 (1997) (providing that “[a] determination by the Attorney General as to whether an alien satisfies the requirements of this clause ... is final and shall not be subject to review by any court”); see also 8 U.S.C. § 1252(d) (restoring jurisdiction over questions of law and constitutional questions).
Contrary to petitioners’ contention, the BIA neither abused its discretion in denying their unsupported motion to file a late brief, nor inadequately explained its reason for doing so. See 8 C.F.R. § 1003.3(c)(1) (BIA has discretion to extend time period for filing of briefs).
In their opening brief, petitioners fail to address, and therefore have waived any challenge to, the agency’s denial of their applications for cancellation of removal, asylum, withholding of removal, and CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
Petitioners’ due process contentions are unavailing.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477148/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
. Ivory Peters, Jr., appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Peters, No. 3:06-cr-00203-REP-6 (E.D.Va. July 22, 2009). 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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01-04-2023
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11-05-2022
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