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https://www.courtlistener.com/api/rest/v3/opinions/8479975/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
ON REHEARING
PER CURIAM:
In these consolidated appeals, Andrew D. Wenmoth appeals the district court’s orders accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We *272have reviewed the record and find no reversible error. Accordingly, we deny Wen-moth’s motion for appointment of counsel and affirm for the reasons stated by the district court. Wenmoth v. Duncan, No. 3:08-cv-00182-JPB-JSK, 2009 WL 2707579 (N.D.W.Va. Aug. 26, 2009 & 2009 WL 5125202, Dec. 18, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479976/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Wayne Koenig appeals the district court’s order dismissing his 42 U.S.C. *274§ 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Koenig v. State of Maryland, No. 1:09-cv-03488-CCB, 2010 WL 148706 (D.Md. filed Jan. 13, 2010 & entered Jan. 14, 2010). 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479979/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Anthony Austin, 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. See Austin v. Fed. Bureau of Prisons, No. 6:09-cv-00485-MBS, 2010 WL 412815 (D.S.C. Jan. 27, 2010). We dispense with oral argument because the *276facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479981/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Unula Boo Shawn Abebe appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. Abebe v. Perry, No. 0:09-cv-03131-MBS, 2010 WL 737055 (D.S.C. Mar. 1, 2010). 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479983/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Tyrone Kelly seeks to appeal the district court’s order treating his Fed. R. Civ. P. 60(b) motion as an unauthorized successive 28 U.S.C. § 2254 (2006) petition, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently *286reviewed the record and conclude that Kelly has not made the requisite showing. Accordingly, we deny a certificate of ap-pealability and dismiss the appeal.
Additionally, we construe Kelly’s notice of appeal and informal brief as an application to file a second or successive § 2254 petition. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2254 petition, a prisoner must assert claims based on either: (1) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review; or (2) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the petitioner guilty of the offense. 28 U.S.C. § 2244(b)(2) (2006). Kelly’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2254 petition.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479984/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Scheuerman appeals the district court’s order dismissing 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. See Scheuerman v. Bozman, No. 8:09-cv-01386-DKC, 2010 WL 761125 (D.Md. Mar. 1, 2010). 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479985/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fred Lewis Wilson seeks to appeal the district court’s order granting partial summary judgment for Defendants in this 42 U.S.C. § 1983 (2006) action. This court *287may 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, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Wilson seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny Wilson’s pending motions for discovery and to amend and 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479986/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carol L. Pizzuto seeks to appeal the district court’s February 9, 2010 “First Order and Notice Regarding Discovery and Scheduling”. 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, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Pizzuto seeks to appeal is neither a final order nor an ap-pealable 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479987/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony D. McClelland petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court has denied McClelland’s § 3582 motion. Accordingly, because the district court has recently decided McClelland’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479991/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Tijuan Jones petitions for a writ of mandamus, seeking an order directing the magistrate judge to rule on Jones’ 28 U.S.C. § 2241 (2006) motion. The magistrate judge issued his report and recommendation prior to Jones’ petition for writ of mandamus, and the district court has subsequently denied Jones’ § 2241 petition. Accordingly, although we grant leave to proceed in forma pauperis, we deny Jones’ mandamus petition as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479992/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Hoff appeals the district court’s orders denying relief on his 42 U.S.C. § 1983 (2006) complaint and his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hoff v. Davis, No. 4:06-cv-02138-TLW (D.S.C. filed Jan. 6, 2009 & entered Jan. 7, 2009); 2010 WL 234907 (Jan. 15, 2010). 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479993/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bennie A. Mack, Jr. petitions for a writ of mandamus, alleging the district court has unduly delayed acting in his civil action. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the court has now adopted the magistrate judge’s recommendation and dismissed Mack’s action without prejudice to him filing a new complaint correcting the defects cited in the recommendation. Accordingly, we deny the mandamus petition as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*334fore the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479995/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek Marquis Fleming petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion for reconsideration of the court’s prior order denying his motion to correct judgment. He seeks an order from this court directing the district court to act. *346Although we find that mandamus relief is not warranted because the delay is not unreasonable, we deny the mandamus petition without prejudice to the filing of another mandamus petition if the district court does not act expeditiously. We grant leave to proceed in forma pauperis. We deny Fleming’s motion to expedite as moot and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479996/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph M. Roberts appeals the district court’s order accepting the recommendation of the magistrate judge and affirming the Commissioner’s decision denying Roberts’ applications for disability insurance benefits and supplemental security income. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Roberts v. Astme, No. 9:07-cv-03417-HMH, 2009 WL 436461 (D.S.C. Feb. 20, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479997/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jose Alfonso Rodriguez Garcia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th CiR. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479998/ | PER CURIAM: *
Vivian Rivas Janeth, a citizen and native of Guatemala, petitions this court for review of the Board of Immigration Appeals’ (BIA) order dismissing her appeal from the Immigration Judge’s (IJ) denial of her application for withholding of removal. In her petition for review, Rivas does not dispute the BIA’s conclusion regarding future persecution. Consequently, any claim she may have had concerning this conclusion is abandoned. See Hongyok v. Gonzales, 492 F.3d 547, 551 n. 5 (5th Cir.2007).
Rather than challenging the BIA’s determination concerning future persecution, Rivas focuses her arguments to this court on past persecution. Specifically, she contends that the three incidents she described during the hearing on her application for withholding of removal sufficed to show that she had suffered past persecution based on her political beliefs and membership in a certain social group.
Because the BIA’s dismissal of Rivas’s appeal was based in part on the IJ’s opinion and in part on its own conclusions, we will review both decisions. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir.2007). We review an immigration court’s rulings of law de novo and its findings of fact to determine if they are supported by substantial evidence in the record. Id. at 594.
Both the BIA and the IJ determined that the harm Rivas suffered in Guatemala did not rise to the level of persecution and that she was thus unable to establish that she was persecuted in her native country. The evidence does not compel a contrary conclusion. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.2006); see also Eduard v. Ashcroft, 379 F.3d 182, 186 (5th Cir.2004); Mikhael v. I.N.S., 115 F.3d 299, 304 & n. 4 (5th Cir.1997). To the extent Rivas contends that the IJ rejected her claim because she had failed to prove that she suffered permanent or life-threatening injuries, this contention is based on an apparent misreading of the IJ’s opinion. As the BIA noted, the IJ imposed no such requirement.
PETITION FOR REVIEW DENIED.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480010/ | PER CURIAM: *
The attorney appointed to represent Elias Munoz, Jr., has moved for leave to *409withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Munoz has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *409published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480000/ | PER CURIAM: *
Juan Carlos Griego-Portillo pled guilty to illegal reentry and making a false claim of United States citizenship.1 Griego-Por-tillo was sentenced at the top of his advisory guidelines range to 27 months’ imprisonment. Griego-Portillo now appeals his sentence contending it is substantively unreasonable as greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a).
The court reviews a sentence for abuse of discretion2 and because the district court imposed a sentence within a properly calculated guidelines sentencing range, it is presumptively reasonable.3 Griego-Por-tillo argues that his sentence is substantively unreasonable considering he grew up in the United States, only learning that he was not a U.S. citizen when he was almost 18 years old, has little family support in Mexico, and suffers from serious health problems including epilepsy. The district court’s comments at the sentencing hearing indicate that in arriving at a sentence, it accepted as true, or did not entirely discount, Griego’s epilepsy and need for financial help from family. The court nevertheless imposed a sentence at the top of the applicable guidelines range. Grie-go-Portillo’s arguments fail to overcome *376the presumption of reasonableness afforded to his within-guidelines sentence and he has not shown the district court abused its discretion.4
Griego-Portillo also contests the validity of the Sentencing Guidelines at issue, namely, U.S.S.G. § 2L1.2 and § 2L2.2, but admits his arguments are foreclosed in this court and raises the issue solely to preserve the issue for review by the Supreme Court.5
AFFIRMED.
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.
.8 U.S.C. § 1326; 18 U.S.C. § 911.
. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.2008).
. United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008); see also Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
. See, e.g., Gomez-Herrera, 523 F.3d at 565-66 (5th Cir.2008).
. See United States v. Duarte, 569 F.3d 528, 529-31 & n. 11 (5th Cir.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480001/ | PER CURIAM: *
Jose Cristobal Cardona, federal prisoner # 40869-080, moves for leave to proceed in *377forma pauperis (IFP) on appeal from the district court’s order denying him habeas corpus relief pursuant to 28 U.S.C. § 2241. Cardona’s IFP motion is denied.
Cardona was convicted of possession with intent to distribute marijuana and cocaine and conspiracy to possess with intent to distribute both drugs. He was sentenced to 480 months of imprisonment. His conviction and sentence were affirmed, United States v. Whittington, 269 Fed.Appx. 388, 411 (5th Cir.2008), and the Supreme Court denied certiorari. Cardona v. United States, — U.S. -, 128 S.Ct. 2523, 171 L.Ed.2d 803 (2008); Cardona v. United States, — U.S. -, 129 S.Ct. 151, 172 L.Ed.2d 112 (2008).
The appellant sought relief pursuant to 28 U.S.C. § 2255, contending, inter alia, that this court deprived him of due process on direct appeal and applied an incorrect standard of review to one of his appellate claims. The district court determined that his claims as to our opinion were beyond the scope of § 2255 and that it lacked jurisdiction to review our opinion, whether pursuant to § 2255 or otherwise. The district court denied relief as to Cardona’s claims challenging our opinion, but granted him relief in the form of a new sentencing hearing on an unrelated ground.
After the district court denied § 2255 relief as to most of Cardona’s claims, but before it resentenced him to the same 480-month term of imprisonment, he petitioned for habeas corpus relief pursuant § 2241. Cardona challenged our opinion on direct appeal on numerous grounds and contended that § 2255 was an inadequate vehicle for his claims. The district court concluded that he failed to demonstrate that § 2255 was inadequate so as to allow him to pursue § 2241 relief. The district court iterated its determination that it lacked authority to review the opinions of this court. The district court certified that Cardona’s appeal was taken in bad faith and denied him leave to proceed IFP on appeal.
The appellant moves for leave to proceed IFP on appeal. Cardona argues that he should be allowed to pursue relief pursuant to § 2241 because (1) a grant of certiorari is discretionary, rendering it inadequate as a vehicle for relief, (2) § 2255 is an inadequate vehicle to challenge an appellate decision because that statute addresses violations that occur at trial and sentencing, and (3) because this court issued “an unpublished fraudulent opinion” in his case that he should be allowed to challenge.
When a district court certifies that an appeal is frivolous and is not taken in good faith under 28 U.S.C. § 1915(a)(3) and Fed. R.App. P. 24(a)(3), an appellant may either pay the filing fee or challenge the district court’s certification decision by filing a motion for leave to proceed IFP in this court. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). This court’s inquiry into the litigant’s good faith “is limited to whether the appeal involves ‘legal points arguable on their merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir.1983) (citation omitted). If the court upholds the district court’s certification that the appeal is not taken in good faith and the litigant persists in the appeal, he must pay the appellate filing fee or the appeal will be dismissed for want of prosecution. Baugh, 117 F.3d at 202. Alternatively, this court may dismiss the appeal sua sponte under 5th CiR. R. 42.2 if it is frivolous. Id. at 202 n. 24.
*378We review de novo the district court’s determinations as to jurisdiction. Zolicoffer v. U.S. Dep’t of Justice, 315 F.3d 538, 540 (5th Cir.2003). The relevant statutes provide that the final rulings of district courts are reviewable by the Courts of Appeals. 28 U.S.C. § 1291. Decisions of the Courts of Appeals, in turn, are reviewable by the Supreme Court. 28 U.S.C. § 1254(1). Cardona sought certiorari from the Supreme Court and was unsuccessful. Cardona, 128 S.Ct. at 2523; Cardona, 129 S.Ct. at 151. He thus exhausted the process for challenging our opinion on direct appeal.
District courts lack habeas jurisdiction to review the decisions of appellate courts; instead, the habeas determinations of district courts are reviewable by the Courts of Appeals. 28 U.S.C. § 2253(a). The district court in Cardona’s case lacked jurisdiction to review the opinion rendered by this court on direct appeal.
Cardona’s appeal is without arguable merit and is frivolous. See Howard, 707 F.2d at 220 (5th Cir.1983). His IFP motion is denied and the appeal is dismissed. See 5th CiR. R. 42.2.
We take note that Cardona has two additional appeals pending-one from the resentencing resulting from the § 2255 proceeding and another from the denial of a § 2255 motion challenging the resentencing proceeding. We express no opinion on the merits of those appeals; we merely note that they are pending. Moreover, he proceeded to file his § 2241 petition after the district court admonished him that it lacked jurisdiction under any provision to review our opinions. Cardona is warned that future frivolous collateral challenges to his conviction or our opinion on direct appeal may result in sanctions against him.
IFP DENIED. APPEAL DISMISSED. SANCTION WARNING ISSUED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *377published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480002/ | PER CURIAM: *
Leopoldo Galang Lising, Texas prisoner # 781977, has filed an application for leave *379to proceed in forma pauperis (IFP) on appeal, following the district court’s order granting the defendants’ motion for a protective order. The order stated that the defendants were not required to respond to any discovery requests propounded by Lising until the issues of qualified and Eleventh Amendment immunity were resolved.
We must examine the basis of our jurisdiction sua sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). Discovery orders incident to a pending action are interlocutory and, ordinarily, are not appealable. Texaco Inc. v. La. Land & Exploration Co., 995 F.2d 43, 44 (5th Cir.1993). Discovery oi’ders, however, are appealable under the collateral-order doctrine if the order denies a defendant’s claim of qualified immunity. Liberty Mut. Ins. Co. v. La. Dep’t of Ins., 62 F.3d 115, 117 (5th Cir.1995).
The district court’s order did not deny the defendants’ claims of qualified immunity. Accordingly, we are without jurisdiction, and the appeal is dismissed. Lising’s motion to proceed IFP on appeal is denied.
APPEAL DISMISSED; MOTION DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *379published and is not precedent except under the limited circumstances set forth in 5th Cut. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480004/ | PER CURIAM: *
Francisco Gracia Ledezma (Gracia), federal prisoner # 30710-077, has filed a motion for leave to proceed in forma pauperis (IFP) to appeal the district court’s judgment granting the defendants’ motions to dismiss his civil rights complaint for failure to state a claim upon which relief may be granted. The district court denied Gracia’s IFP motions and certified that the appeal was not taken in good faith. By moving for IFP status, Gracia is challenging the district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997).
Gracia, a diabetic, contends that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment because they failed to provide him with adequate medical care after he was bitten by a brown recluse spider on May 19, 2005. Speeifi-*383eally, he argues that the absence of doctors and registered nurses on the weekend of his arrival at the Reeves County Detention Center (RCDC) and Dr. Vernon Farthing’s and Nurse Joan Brem’s interference with Dr. Cody’s prescribed treatment violated his constitutional rights. The district court’s grant of a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is subject to de novo review. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2007).
The allegations in Gracia’s complaint and more definite statement were insufficient to state a claim of deliberate indifference to his serious medical needs. Although Gracia alleged that there were no doctors or registered nurses available on the weekend of his arrival at the RCDC, he was seen by nurses four hours after his arrival. Further, although Gracia alleged that the nurses ignored his request for emergency medical care, he was given a penicillin shot, a tetanus shot, and a shot to prevent a stomach infection. Gracia was taken to the hospital the following Monday morning, where he was examined and treated by Dr. Cody. Gracia’s disagreement with the medical treatment he received upon his arrival at the RCDC is insufficient to state a claim of deliberate indifference. See Varnado v. Lynaugh, 920 F.2d 320, 821 (5th Cir.1991). Further, Dr. Farthing’s failure to follow Dr. Cody’s treatment plan did not constitute deliberate indifference to Gracia’s serious medical needs. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir.1999). The question whether “additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment.” Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Therefore, the district court did not err when it dismissed Gracia’s claims related to the medical care he received following his 2005 spider bite.
Gracia also contends that United States District Judge Robert A. Junell and United States Magistrate Judge B. Dwight Goains were biased against him and violated his constitutional rights. However, his conclusional allegations stemming from the adverse rulings are not sufficient to support a finding of bias. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Aside from conclusional allegations, Gra-cia does not challenge the district court’s determination that his allegations were insufficient to state a claim of deliberate indifference against Lt. Mata, Lt. Morales, P.A. Ethen, Nurse Pete Ramos, Dr. Brenda Owens, Unit Manager Jackie Hernandez, Case Manager Mary Gonzalez, Medical Administrator Luis Gonzalez, and Nurse Steven Wallace. He also does not challenge the district court’s dismissal of his habeas corpus claims against the United States of America and former United States Attorney General Alberto Gonzalez, or his denial of access to the courts claim against Hernandez. Therefore, these claims are deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987).
Further, this court will not consider Gracia’s newly raised allegations regarding' events that occurred subsequent to the district court’s dismissal of his case. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n. 26 (5th Cir.1999); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999).
[3] Finally, Gracia contends that the RCDC and its staff violated his constitutional rights by failing to treat his serious vision problems and that Dr. Subia performed eye surgery on him without his consent. Gracia’s complaint was filed on May 11, 2007, in the Fort Worth Division of the Northern District of Texas, Case No. 4:07-CV-00284. On January 14, 2008, *384the case was transferred to the Pecos Division of the Western District of Texas, Case No. 4:08-CV-007. Although Gracia raised these claims in several documents filed prior to the transfer order and prior to any responsive pleading or Fed.R.Civ.P. 12(b) motion, these documents were not included in the record in Case No. 4:08-CV-007. Consequently, the district court did not consider the claims raised in these filings or determine whether the filings should have been construed liberally as requests to amend the complaint. See Fed.R.Civ.P. 15(a)(1); Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1081 (5th Cir.1991). Gracia also referred to the alleged violation of his constitutional rights in conjunction with his vision problems and the treatment by Dr. Subia in several filings filed after the defendants filed responsive pleadings. The district court did not consider the claims raised therein or liberally construe the filings as requests to amend the complaint.
In light of the foregoing, the district court’s certification that Gracia’s appeal was not taken in good faith is erroneous in part. Whether the facts ultimately establish a deliberate indifference claim related to Gracia’s vision problems is not a question to be answered at this stage of the proceedings. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Accordingly, Gracia’s motion to proceed IFP on appeal is granted. The district court’s judgment is vacated in part and remanded for further proceedings on Gracia’s claims related to his vision problems. The district court’s judgment is affirmed with respect to all other claims.
IFP MOTION GRANTED; JUDGMENT AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480005/ | PER CURIAM: *
John Doe, John Doe II, and John Doe III (collectively, “Plaintiffs”) appeal the district court’s grant of summary judgment in favor of St. Stephen’s Episcopal School; Robert Kirkpatrick; the Protestant Episcopal Church Council of the Diocese of Texas (“Diocese”); and Reverend Don Wimberly, D.D. (collectively, “St.Stephen’s”), dismissing Plaintiffs’ claims of breach of fiduciary duty, civil conspiracy, fraud and fraud concealment, negligence and negligent misrepresentation, and vicarious liability as time-barred. Plaintiffs contend the district court erred in failing to apply Texas’s discovery rule and the doctrines of fraudulent concealment and equitable estoppel to toll the statute of limitations. St. Stephen’s cross-appeals the district court’s denial of its motion to respond to Plaintiffs’ response to its motion for summary judgment. For the reasons discussed below, we AFFIRM the district court’s grant of summary judgment.1
We review a district court’s grant of summary judgment de novo. XL Specialty Ins. Co. v. Kiewit Offshore Servs., 513 F.3d 146, 149 (5th Cir.2008). Summary judgment is proper if the record presented to the court “show[s] 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)(2).
The parties do not dispute that James Lydell Tucker sexually abused Plaintiffs between 1964 and 1968 while they were students at St. Stephen’s. At the time, Tucker was the chaplain and a member of *388the faculty at the school. In 1968, Does II and III notified then-headmaster Dr. Allen Becker of the abuse. He instructed them not to tell anyone, including their parents.
In 2006, the Diocese2 began an investigation into Tucker’s actions after the 1968 abuse complaint was discussed at a class reunion. Plaintiffs, who were interviewed by Diocese investigators, subsequently filed this lawsuit in 2008. While all Plaintiffs struggled with some combination of academic, addiction, and psychological problems subsequent to the abuse, they were not diagnosed with Post-Traumatic Stress Disorder (“PTSD”) related to the abuse until 2007 or later.
In the instant diversity matter, we refer to Texas’s statute of limitations and tolling doctrines to determine whether the district court erred in failing to toll the statute. See Erie R.R. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In Texas, the statute of limitations for personal injury in sexual assault cases is five years from when the cause of action accrues.3 Tex. Civ. Prac. & Rem.Code § 16.0045(a). “[A] cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). However, when the victim is a child, the statute of limitations is tolled until the child turns eighteen. Tex. Civ. Prac. & Rem.Code § 16.001(a)—(b).
All Plaintiffs had turned eighteen by 1969. Unless an exception to the statute of limitations applies to toll the running of the limitations period on Plaintiffs’ claims, the causes of action were barred by 1974. However, Plaintiffs argue that the discovery rule should apply to toll the statute of limitations because they were unaware the abuse had caused their psychological injuries."4 The discovery rule is an exception to the limitations period that tolls the statute of limitations when “the alleged wrongful act and resulting injury are inherently undiscoverable at the time they occurred but may be objectively verified.” S.V., 933 S.W.2d at 6. “An injury is inherently un-discoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence.” Id. at 7.
The Texas Supreme Court has not directly addressed the question of whether all sexual abuse cases are inherently undiscoverable, but other Texas courts have found that the discovery rule does not apply uniformly to these cases. See Doe v. Linam, 225 F.Supp.2d 731, 735-36 (S.D.Tex.2002) (holding that the discovery rule did not apply because the plaintiff *389knew both of the abuse and of his emotional and psychological problems); Marshall v. First Baptist Church, 949 S.W.2d 504, 507 (Tex.App.1997) (holding that the discovery rule did not apply because the victim had reported the abuse and therefore had “discovered the wrongful acts”). To bring a suit, it is not necessary for the victim to connect the abuse to any subsequent psychological injuries or understand the full extent of his injuries. Adams v. YMCA, 265 S.W.3d 915, 917-18 (Tex.2008); Linam, 225 F.Supp.2d at 785-36. Sexual assault — an impermissible and intentional invasion of the victim’s person — is in and of itself an injury “actionable independently and separately from mental suffering or other injury.” Harned v. E-Z Fin. Co., 151 Tex. 641, 254 S.W.2d 81, 85 (1953).
In the instant matter, all Plaintiffs testified that they had mentioned to other people at least five years prior to the filing of the lawsuit that they had been molested and that they have been aware, at least periodically, of the molestation since they turned eighteen.5 Under Texas law, knowledge and reporting of the abuse foreclose the contention that this abuse was inherently undiscoverable. See S.V., 933 S.W.2d at 6-7.
Plaintiffs contend the discovery rule should apply because their “suppression and repression” prevented them from understanding the extent and ramifications of the abuse. However, Texas courts have distinguished cases in which victims were at least in some way aware of the abuse from cases in which the victim repressed all memories of the abuse. Compare Placette v. M.G.S.L., No. 09-09-00410, 2010 WL 1611018, at *5, 2010 Tex.App. LEXIS 2935, at *14-*15 (Tex.App. Apr. 22, 2010) (holding that the discovery rule did not apply because the victim “testified she ‘always knew' she had been abused”), with S.V., 933 S.W.2d at 8 (assuming without deciding that victim’s injuries were inherently undiscoverable because the victim had completely repressed memories of the abuse, recovering them only through therapy sessions).
Although Plaintiffs present affidavits from a psychiatrist asserting they have suppressed and repressed the abuse, we find the facts of this case insufficient to show that the sexual abuse was inherently undiscoverable. While Plaintiffs likely did engage in psychological coping mechanisms, unlike the victim in S.V., those mechanisms did not completely “block ... all memory of’ the abuse, as demonstrated by Plaintiffs’ comments about the abuse to others. 933 S.W.2d at 11. Furthermore, Plaintiffs completed college and maintained careers, indicating that the coping mechanisms did not “so mentally impair [Plaintiffs as to make them] unable to participate in, control, or understand the progression and disposition of a lawsuit.” Placette, 2010 WL 1611018, at *5-6, 2010 Tex.App. LEXIS 2935, at *15. Therefore, the district court properly found that the discovery rule did not toll the statutory limitations on Plaintiffs’ sexual assault claims.
Plaintiffs also argue that fraudulent concealment and equitable estoppel should apply to toll the statute of limitations because St. Stephen’s and Headmaster Becker did not act on their abuse allegations. The doctrine of fraudulent concealment “suspend[s] the running of limitations until *390such time as the plaintiff learned of, or should have discovered, the deceitful conduct or the facts giving rise to the cause of action.” Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex.1999). For fraudulent concealment to apply, the plaintiff must prove the defendant: “(1) had actual knowledge of the wrong; (2) had a fixed purpose to conceal the wrong; and (3) did conceal the wrong from the plaintiff.” Quigley v. Bennett, 256 S.W.3d 356, 360-61 (Tex.App.2008) (citing Shah v. Moss, 67 S.W.3d 836, 841 (Tex.2001)). Similarly, equitable es-toppel tolls the statute of limitations where there exists “a false representation or concealment of material facts [and] the party to whom the statement was made must have been without knowledge or means of knowledge of the real facts.” Linam, 225 F.Supp.2d at 737 (quoting Gulbenkian v. Penn, 151 Tex. 412, 418, 252 S.W.2d 929 (Tex.1952)).
Plaintiffs’ arguments fail under both doctrines because, based on their later statements about the abuse to others, Plaintiffs had knowledge of their abuse and had not been deceived into thinking they had not been abused. See Linam, 225 F.Supp.2d at 737; S.V., 933 S.W.2d at 8. Accordingly, the district court did not err in refusing to toll the statute of limitations under either the doctrine of fraudulent concealment or equitable estoppel.
Because the district court did not err in granting St. Stephen’s summary judgment motion based on the untimeliness of Plaintiffs’ claims, we need not reach the merits of St. Stephen’s cross appeal.
AFFIRMED.
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.
. Plaintiffs fail to brief any arguments related to their civil conspiracy claim, which is separately addressed in the district court’s order. Accordingly, any issues related to that claim are waived for failure to brief. See, e.g., Hernandez v. Arellano, 191 Fed.Appx. 263, 265 (5th Cir.2006).
. As an ordained Protestant Episcopal Priest in the Diocese, Tucker was employed by the Diocese during his tenure at St. Stephen's Episcopal School.
. The vicarious liability claim is brought through the personal injury cause of action. The statute of limitations for civil conspiracy, negligence, and negligent misrepresentation is two years from the date of the accrual of tire claim. See Tex. Civ Prac. & Rem.Code § 16.003; Newby v. Enron Corp., 542 F.3d 463, 468 (5th Cir.2008) (negligent misrepresentation); Jackson v. W. Telemktg. Corp. Outbound, 245 F.3d 518 (5th Cir.2001) (civil conspiracy); Geraghty & Miller, Inc. v. Conoco Inc., 234 F.3d 917, 931 (5th Cir.2000) (negligence). The statute of limitations for breach for fraud and breach of fiduciary duty is four years. Tex. Civ. Prac. & Rem Code § 16.004(a)(4)-(5). These statutes of limitations are subsumed by the personal injury statute of limitations for purposes of this discussion.
.In support of their argument, Plaintiffs rely almost exclusively on Childs v. Haussecker, 974 S.W.2d 31 (Tex.1998). This case concerns latent occupational injuries and does not discuss the discovery rule in the context of sexual abuse.
. Doe testified that he first told a mental health professional of the abuse in 1969 and next told a marriage counselor in 1991. Since then, he has informed multiple other people. Doe II testified he told his wife of the abuse in early 2000. Doe III testified that he "brought it up at various times in personal situations” after graduating from St. Stephen’s and also informed his parents in 1984 or 1985. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480007/ | PER CURIAM: *
Jesse Lee Bell, Jr., Texas prisoner # 614588, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim. Bell argues that the district court erred by dismissing his equal protection claims, as well as his claims relating to prison grievance procedures. He contends that he was threatened with retaliation for using the grievance procedures and that, when he complained of this threat, his grievances were improperly handled. Bell has abandoned the due process, ex post facto, double jeopardy, and Eighth Amendment claims relating to the restrictions placed on his ability to take computer-related vocational classes by failing to brief these issues on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993).
The district court dismissed Bell’s complaint pursuant to 28 U.S.C. § 1915A(b)(l). Therefore, our review is de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998).
Bell argues that his right to equal protection was violated both as a class-of-one and as a member of a class of sexual offenders due to the failure to allow him to participate in computer-related vocational courses based on his having been convicted of a sexual offense. Bell contends that there is no rational basis for this restriction, particularly where his offense did not involve the use of computers.
Bell’s allegations that he has been treated differently than other similarly situated sex offenders are conclusional. He does not identify any other prisoners who were sexual offenders and were allowed to enroll in computer courses, nor has he alleged that other prisoners were convicted of the same offense as he was or that they were allowed into the same courses for which he applied. Because Bell’s class-of-one allegations are conclusional, the district court did not err in dismissing this claim as frivolous and for failure to state a claim. See Pedraza v. Meyer, 919 F.2d 317, 318 n. 1 (5th Cir.1990).
Bell’s related argument that his right to equal protection as a member of a class of sexual offenders was violated is without merit. Inmates convicted of a sexual offense are not a suspect class, and thus any such classification is only subject to rational basis review. See Wottlin v. Fleming, 136 F.3d 1032, 1036-37 (5th Cir.1998). This court has previously found that subjecting inmates who are sex offenders to different parole procedures is reasonably related to legitimate penological interests. See Brown v. Dretke, 184 Fed.Appx. 384, 385 (5th Cir.2006) (unpublished). In this case, there are also rational reasons why the State might restrict sexual offenders from using computers. *393Such a restriction prevents sexual offenders from attempting to obtain and distribute sexually-explieit material over the Internet and contact potential victims over the internet. Because the restriction is rationally related to a legitimate penological interest, the district court did not err in dismissing the claim.
Bell has not stated a retaliation claim because he has alleged only a threat, but no retaliatory adverse act. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.1999); Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir.1993). Accordingly, the district court did not err in dismissing this claim.
Similarly, Bell’s assertion that his constitutional rights were violated by the failure to process his grievances does not state a claim and is frivolous. There is no constitutionally protected interest in the processing of an inmate’s grievances. See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir.2005). Additionally, Bell could not show any injury from the failure to consider his grievances because the alleged threat he complained of in the grievances did not implicate his constitutional rights. See Bender, 1 F.3d at 274 n. 4.
For the above reasons, the district court’s judgment is affirmed.
AFFIRMED.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480008/ | PER CURIAM: *
The Federal Public Defender appointed to represent Raymundo Jimenez Medrano has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Medrano has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw *394is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480009/ | PER CURIAM: *
The attorney appointed to represent Ramon Morales has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Morales has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480013/ | PER CURIAM: *
The attorney appointed to represent Manuel Palacios-Olguin has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Palacios-Olguin has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cm. R. 42.2.
Pursuant to 5tii 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480014/ | PER CURIAM: *
The attorney appointed to represent Roberto Diaz has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Diaz has filed a response. Our independent review of the record, counsel’s brief, and Diaz’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480015/ | PER CURIAM: *
The attorney appointed to represent Juan Alberto Guzman-Sanchez (Guzman) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Guzman has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480017/ | *501ORDER
Christopher McSwain sued Dr. Paul Sumnieht and nurse Belinda Schrubbe, medical providers with the Wisconsin Department of Corrections, under 42 U.S.C. § 1983, alleging that they were deliberately indifferent to his foot injury in violation of his rights under the Eight Amendment.1 The district court granted the defendants’ motion for summary judgment. We affirm the decision of the district court.
Because McSwain failed to respond to the defendants’ motion for summary judgment, the district court accepted their version of events, see Fed.R.Civ.P. 56(e)(2); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.2003), and we recount the facts as they presented them while construing reasonable inferences in McSwain’s favor. Sometime before he was incarcerated, McSwain stepped on a nail and punctured his right plantar fascia (the connective tissue on the bottom of the foot). As a result of this injury, at times portions of his muscle protruded through the hole created by the nail. Over the years McSwain received repeated treatment and surgery for this issue. In one surgery, doctors placed a sldn graft over the hole to prevent future muscle herniation. Unfortunately the graft never fully healed and it left McSwain — who also suffered from poorly controlled diabetes — with a risk of severe infection.
In December 2007, while incarcerated, McSwain complained of foot pain and began receiving care from Dr. Sumnieht and nurse Schrubbe. During his first two consultations Dr. Sumnieht examined McSwain and observed that the graft had not healed properly and that a bulge had formed in the bottom of his foot. Dr. Sumnieht believed the bulge was a pocket of fluid that could cause infection, so he punctured and attempted to drain it. In the process, he observed that portions of McSwain’s foot suffered from a restricted blood supply and that the area posed a significant risk of infection. Dr. Sumnieht also observed that McSwain was sensitive to pain and recommended that he be seen by an outside specialist. After Dr. Sum-nicht’s attempt to drain the area, nurse Schrubbe checked in with McSwain almost daily, assessing the nature of the wound and changing his dressing.
In January 2008, McSwain saw a specialist at the University of Wisconsin. The specialist concluded that there was no infection but recommended a consultation and follow-up care. Over the course of next the two months, doctors determined that if the wound did not heal his risk of infection would increase, and that if he developed uncontrolled infection he was at risk of losing his foot. In response to these concerns, doctors used an MRI and a bone scan to test for infection in his bones. After these tests, McSwain was sent to an outside facility for surgery. An orthopedic specialist removed infected tissue and placed McSwain on a device that provided continuous suction so that the wound would heal properly. By the end of March 2008, the wound had closed, and although McSwain appeared to be infection free, he was unable to bear weight on his foot. After a month of recovery time in the clinic, McSwain returned to the correctional facility in April 2008.
McSwain’s administrative grievance protested the treatment that he received in January 2008 by explaining that he was in pain and that he was not receiving adequate care from the health services unit. *502A complaint examiner from the Department of Corrections rejected McSwain’s complaint because it was too vague but gave him an opportunity to appeal that decision or refile his complaint. It appears McSwain never heeded this instruction, however, and he instead filed his suit under § 1983 with the district court. The court later granted the defendant’s unopposed motion for summary judgment, reasoning that MeSwain had not exhausted his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), and that even if he had exhausted his remedies, McSwain had failed to establish that Dr. Sumnicht and nurse Schrubbe were deliberately indifferent to his foot pain.
Before proceeding with our review, we note that McSwain passed away after his appeal was briefed, and we therefore must address the threshold question whether his parents may proceed with this case. First, we note that McSwain’s § 1983 claim is analogous to a Wisconsin tort action for “injuries to the person,” and because those claims survive, see Wis. Stat. § 895.01(1), so too would McSwain’s § 1983 claim of deliberate indifference. See Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 898 (7th Cir.1997). Although the claim survives, it belongs to McSwain’s estate. Id. And because, unlike pro se litigants, administrators of estates act not as individuals but on behalf of all beneficiaries, they may not represent the estate pro se unless they are the sole beneficiaries. Malone v. Nielson, 474 F.3d 934, 937 (7th Cir.2007). Here, the death certificate and statement filed by the parents do not reflect any survivors other than the parents themselves, making them the sole heirs under Wisconsin’s rules of intestate succession. Wis. Stat. § 852.01(l)(c). Accordingly the parents may be substituted into this case and may proceed pro se. (Because MeSwain himself wrote the briefs and framed the arguments, we will continue to use his name in this order.)
On appeal MeSwain challenges the district court’s findings on both exhaustion and deliberate indifference. Reviewing both decisions de novo, see Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.2006), we conclude that the district court was correct in each instance and that summary judgment was therefore appropriate.
First, the defendants established that MeSwain did not exhaust his administrative remedies, as required by § 1997e(a). See Kaba, 458 F.3d at 681. Section 1997e(a) requires prisoners to exhaust their administrative remedies before filing a federal claim under § 1983, Booth v. Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); Obriecht v. Raemisch, 517 F.3d 489, 492 (7th Cir.2008), and we have adopted a “strict compliance approach” to this requirement, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006). Specifically, we have held that state prisoners must comply with the procedures and standards imposed by the applicable state (in this case Wisconsin). See Strong v. David, 297 F.3d 646, 649 (7th Cir.2002); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.2002).
McSwain does not contest that, under those procedures, he had a right to file an administrative appeal of a dismissal within 10 calendar days, Wis. AdmiN.Code § 310.11(6), and he neglected to do so. Instead, he simply asserts that he tried to follow the rules but that prison officials “dated [his] complaint and sent it back without [any] receipt,” and that after it was returned, he did not know how to proceed. McSwain’s precise argument is difficult to follow, but to the extent that he now claims on appeal that prison officials prevented him from complying with the administrative rules imposed by Wisconsin *503law, that assertion is not supported by any sworn evidence in the record. If McSwain’s argument is that he did not file an administrative appeal because he did not know he was required to do so, that argument also fails because ignorance of the proper grievance procedure does not excuse compliance. See Booth, 532 U.S. at 741 n. 6, 121 S.Ct. 1819; Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.2000). Accordingly, the district court properly granted summary judgment based on his failure to exhaust administrative remedies.
Even if we bypassed the exhaustion issue and considered the merits, the uncontested facts presented by Dr. Sumnicht and nurse Schrubbe establish that they were not deliberately indifferent to his foot pain. To prove a claim of deliberate indifference, “a plaintiff must show (1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008) (internal citation omitted). Although we may assume that McSwain’s foot condition qualified as a serious medical condition, no evidence suggests that Dr. Sumnicht and nurse Schrubbe were intentionally indifferent to it. The crux of McSwain’s argument seems to be that Dr. Sumnicht intentionally inflicted severe pain when he punctured the bulge in his foot to release the fluid that was accumulating and that nurse Schrubbe failed to properly respond to the pain this procedure caused. We accept that the infection and poorly healing graft on McSwain’s right foot caused him severe pain, but nothing suggests that the pain was needlessly inflicted or anything other than the natural consequence of a necessary procedure. Furthermore, the extensive medieal treatment that he received to manage his foot condition shows that overall Dr. Sumnicht and nurse Schrubbe provided McSwain with constitutionally adequate medical care. Finally, McSwain’s subjective disagreement with the medical professionals regarding the course of treatment he received for his foot injury is insufficient to establish a claim of deliberate indifference, see Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir.2003). Accordingly, the judgment of the district court is AFFIRMED.
. A third defendant, Dr. Jill Migon, was originally named in McSwain's complaint, but the district court dismissed all claims against her. McSwain did not appeal that decision, so Migon is not a party here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480019/ | ORDER
Tina Kellems applied for disability benefits, but an administrative law judge denied her claim, reasoning that her testimony about her pain-induced functional limitations was not credible. The ALJ supported his credibility determination with a number of factual findings, including a finding that Kellems had engaged in drug-seeking behavior. A magistrate judge, presiding with the consent of the parties, affirmed the ALJ’s decision, and Kellems appeals. We conclude that the ALJ’s finding that Kellems engaged in drug-seeking behavior is not supported in the record. Because it is impossible to determine whether the ALJ would have made the same credibility determination had he not erroneously accused Kellems of engaging in drug-seeking behavior, we reverse the district court’s judgment and remand this case to the Social Security Administration for further proceedings.
I.
In her application for disability benefits, Kellems claimed that she became disabled in November 2001, when Randall Megeff, her primary-care doctor, diagnosed her with chronic pain syndrome, depression, and hypertension. Judith Lee-Sigler, a specialist in physical medicine who worked in the same clinic, began treating Kellems’ pain in February 2002 and diagnosed her with fibromyalgia, cervical degenerative disc disease, and lower back pain. Although Kellems was attending nursing school at the time, she later put her studies on hold because of her pain. She was also being paid for the somewhat strenuous work of caring for her husband’s elderly relative; she had to lift the woman out of a wheelchair as often as 25 times each day, which aggravated her pain. But she could not afford to quit, and the record suggests that she was still performing this work as late as May 2003.
Dr. Lee-Sigler told Kellems in July 2002 that she was taking too many narcotic pain medications. Kellems was “frustrated” but “willing to work with” her doctor to discontinue some of them. In November 2002 Dr. Lee-Sigler concluded that Kel-lems’ pain required expert treatment and referred her to a chronic-pain center in another city around 80 miles away. Kel-lems saw Dr. Lee-Sigler a few weeks later to ask for prescription refills. She admitted that she had been taking some of her husband’s pain medication because she had run out, so the doctor agreed to refill Kellems’ prescription one final time to tide her over until she could make it to the pain center. Eventually a doctor at the pain center devised a treatment plan for Kel-*514lems, but the 90-minute drive was too long for her to make on a regular basis. So Dr. Lee-Sigler agreed to administer the treatment plan by prescribing the recommended medications, including methadone. Over the next few months Dr. Lee-Sigler suggested that Kellems should also enroll in physical therapy and exercise more, but there is no evidence in the record that Kellems pursued the doctor’s suggestions.
In January 2004 Dr. Lee-Sigler refused to continue administering Kellems’ treatment plan. She did not approve of the plan’s use of methadone and suggested that “an exercise and behavioral modification program” would do more good. Dr. Megeff agreed to prescribe some of the treatment plan’s medications on a temporary basis, but not methadone. So Kel-lems began an unfruitful search for a pain center that was convenient and that would accept her as a patient. At one point in March 2004 she ran out of methadone and requested some from an emergency-room doctor. But she promptly told Dr. Megeff about the incident; in response he referred her to Dr. Lee-Sigler, who wrote one final methadone prescription and told her how to discontinue the medication gradually.
In May 2004 Dr. Megeff agreed to manage Kellems’ pain medications on a permanent basis. He explained that he believed she was in real pain and did not suspect she was an addict. But nevertheless he insisted that “if I am going to manage her medications there are going to be rules.” First he required Kellems to stop taking methadone. He also required her to agree to a “pain contract” in which she promised to accept “ongoing psychological or psychiatric support for stress management” and not to seek medication from other doctors. Dr. Megeff said he would “likely” stop treating her if she broke her promises. But there is no evidence in the record that Kellems ever ran afoul of the agreement or that Dr. Megeff ever discussed discontinuing her treatment.
While he was treating Kellems’ pain, Dr. Megeff referred her to several specialists, including a genetics clinic, a neurologist, and a spine doctor; she agreed to all these appointments without incident. However, she told Dr. Megeff that she was “not interested” in seeing a psychiatrist. Dr. Megeff also urged her to discontinue all nonessential medications. When he told her this in October 2005 she was “leery,” but in May 2006 she agreed to try. The record does not show whether she succeeded, although Dr. Megeff s treatment notes suggest she did not. In August 2006 Kel-lems briefly sought to replace Dr. Megeff. She visited another primary-care doctor and told him that she was dissatisfied with Dr. Megeffs treatment plan. She asked whether he could prescribe her new pain medications, but he told her he could not think of any she had not yet tried, so she never went back. In April 2007 Dr. Me-geff supported Kellems’ disability claim by submitting a letter that corroborated her reports of pain and concluded that she was not able to perform any work.
At a hearing before an ALJ in April 2007 Kellems rated her pain most days at ten on a ten-point scale. She testified that she could not sit for more than thirty minutes or lift anything more than two pounds. She said she sat in a recliner all day and could not do any household chores. Even though her medications were “doing the best they can,” she explained, they were still doing a “bad” job relieving her pain.
The ALJ found that Kellems was not disabled because she could still perform “light work with occasional postural limitations.” Although the ALJ believed that she was experiencing real pain, he did not find her testimony about the intensity of *515her pain or her pain-induced limitations completely credible. He made several factual findings to support his credibility determination:
The undersigned notes that the record as a whole, reveals inconsistencies in the claimant’s description of her pain, and exaggerations of her pain complaints (for example alleging pain at a level 10 constantly-despite not seeking emergency room treatment), her continued work activity after the alleged onset date, the evidence of drug-seeking behavior and refusal to follow recommendations such as seeking psychiatric care or weaning from drugs as recommended.
The ALJ also thought that Kellems’ behavior at the hearing was inconsistent with her testimony: although she said she could not sit for more than thirty minutes, he noted, she sat through the hour-long hearing without incident. In addition the ALJ based his credibility determination on the absence of objective medical evidence explaining the source of Kellems’ pain. Finally the ALJ refused to give Dr. Megeffs opinion controlling weight, reasoning that it was inconsistent with the record and “based mostly on the claimant’s subjective complaints of ongoing pain and her description of inability to engage in activities.”
II.
Kellems argues on appeal that the ALJ’s credibility determination is tainted by an erroneous finding that she engaged in drug-seeking behavior. She insists that, rather than engaging in drug-seeking behavior, she merely took the medications that her doctors prescribed to relieve her crippling pain. The ALJ’s contrary finding, she argues, “grossly distorts the record” by ignoring the “longitudinal history” of her pain medications, her doctors’ confidence that her pain was real, and her compliance with her doctors’ orders.
Several cases approve discounting the testimony of a claimant who has engaged in drug-seeking behavior, see Simila v. Astrue, 573 F.3d 503, 519 (7th Cir.2009); Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir.2009); Berger v. Astrue, 516 F.3d 539, 546 (7th Cir.2008); Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir.2003); Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir.2001), but none has defined what constitutes drug-seeking behavior. Claimants in these cases do have a common thread, however; each obtained, or attempted to obtain, pain medication by deceiving or manipulating a medical professional. In Simila, for example, the claimant was refused a refill on pain medication after his doctor discovered that he was abusing cocaine; undeterred, he obtained a refill from another doctor by claiming that the first doctor had turned him away for financial reasons. 573 F.3d at 519. Likewise in Poppa the claimant disobeyed her doctor’s orders not to increase the dosage of her pain medication and at least twice asked the doctor to postdate her prescriptions; she also wanted extra medication for an upcoming vacation but was not forthcoming about how long she would be away. 569 F.3d at 1171-72. And in Anderson the claimant’s doctor observed that his patient was ‘“somewhat manipulative’ in his efforts to convince him of his pain.” 344 F.3d at 815.
In this case, however, we do not see any evidence in the record that Kellems obtained, or attempted to obtain, pain medication by deceiving or manipulating a medical professional. In particular we do not think that the supposedly incriminating incidents that the ALJ pointed to in Dr. Megeffs treatment notes are convincing evidence of drug-seeking behavior. Although Kellems never followed through on *516her promise to pursue mental-health treatment, she did seek treatment with a genetics center, a neurologist, and a spine specialist; her willingness to undergo these referrals, presumably designed to locate an objective source of her pain, undercuts any inference that her failure to see a psychiatrist was a drug-seeking tactic. The ALJ also found that Kellems rebuffed Dr. Megeff s recommendation to discontinue $11 nonessential medications, but the record shows the opposite. She stopped taking methadone in May 2004 and agreed to try eliminating all extraneous medications in May 2006. In fact there is no evidence in the record that Dr. Megeff ever observed Kellems exploiting deceptive or manipulative drug-seeking tactics. To the contrary, he said, “I do not feel that she has exhibited typical addictive behaviors.” He explained that she had never “lost” prescriptions and, other than seeking methadone at the emergency room in March 2004, had “not sought care with multiple physicians.” There is no evidence that she ever broke the terms of her “pain contact”; indeed Dr. Megeff was still managing her medications when the ALJ made his finding.
The commissioner cites additional examples of drug-seeking behavior that the ALJ mentioned in his recitation of Kellems’ medical history but did not rely on in making his credibility determination. Of course SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943), forbids the commissioner to defend the ALJ’s decision on grounds not “embraced” by ALJ. Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.2010). But in any event none of these incidents is persuasive. Kellems’ methadone-seeking trip to the emergency room in March 2004 was an isolated event that occurred while she was in withdrawal; she immediately told her doctors, who instructed her how to discontinue the drug properly. And she attempted to replace Dr. Megeff in August 2006 because she was frustrated with her lack of progress, not because she was seeking a secret second source of medications.
Yet even a credibility determination that is partially flawed and based on factual findings that “are a bit harsh” will be disturbed only if the ultimate conclusion is “patently wrong.” Simila, 573 F.3d at 517; Berger, 516 F.3d at 546. And indeed the ALJ made other factual findings to support his credibility determination. But, given his mistaken impression that Kel-lems was engaged in drug-seeking behavior, we will not rely on these additional findings. A credibility determination is a “judgment call” that encompasses all relevant factors. See Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir.2006). The record shows that the ALJ’s mistaken finding was a significant component of his credibility determination. And so it is not possible to say, for example, whether he would have seen Kellems’ behavior at the hearing in the same light had he not wrongly suspected that she was a drugseeker. See Powers v. Apfel, 207 F.3d 431, 436 (7th Cir.2000) (approving ALJ’s direct observation of claimant if “one of several factors” supporting credibility determination). Nor do we know what he would have made of her seemingly inconsistent work history; if he did not already distrust her, he might well have found that her ability to perform heavy lifting in May 2003 said little about whether she was telling the truth when she testified to her pain-induced limitations in April 2007. We think that a reasonable factfinder would be entitled to come out the other way, and we decline to speculate what the ALJ might have done had he had not erred in finding, that Kellems engaged in drug-seeking behavior. See Allord, 455 F.3d at 821-22. Under these circumstances the ALJ’s credibility determination was patently wrong.
*517We REVERSE the district court’s judgment and REMAND the case to the Social Security Administration for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480020/ | *518ORDER
Sowande Dixie pleaded guilty to possessing with intent to distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and possessing a firearm during and in relation to that drug-trafficking crime in violation of 18 U.S.C. § 924(c). The drugs and the gun were recovered from Dixie during a traffic stop, and the evidence against him also included self-incriminating statements he made to the police following his arrest. Dixie moved to suppress the drugs, gun, and statements on the ground that this evidence was the fruit of an unreasonably long traffic stop. When his suppression motion failed, he pleaded guilty to the drug and gun charges, expressly reserving the right to appeal the district court’s denial of his motion to suppress. We now affirm.
On March 6, 2007, Officer George Nick-low was patrolling the streets of Fort Wayne, Indiana, when he spotted a truck •with a broken taillight. The officer initiated a traffic stop and activated the patrol car’s videorecording system; the ensuing encounter was thus captured on video. The truck pulled over in response to the signal, and Officer Nicklow approached the driver — Sowande Dixie — and informed him that his passenger-side taillight was not working properly.1 Dixie said he had something to fix the light and started to reach beneath the seats and around the passenger compartment of the truck. Officer Nicklow told him to keep his hands still and on the steering wheel — a warning that he had to repeat when Dixie continued to rummage around in his truck. Officer Nicklow then asked Dixie for his driver’s license, registration, and proof of insurance. Dixie provided his driver’s license and registration, but could not produce proof of insurance (although he insisted that he was indeed insured).
Officer Nicklow returned to his patrol car to run a check on the documents Dixie had provided. It took less than five minutes to complete this background check. During this time, Officer Rich Paige arrived on scene, and Officer Nicklow told him he intended to ask Dixie to step out of the truck. Officer Nicklow testified at the suppression hearing that he had no intention of writing a citation at this time, but only wanted Dixie to see the broken taillight for himself in order to establish that there had been a legitimate basis for the traffic stop.
With the background check complete, Officer Nicklow returned to Dixie and asked him to “jump out” of the truck “real quick.” Dixie dropped his cell phone as he got out of the truck. As he retrieved the phone with his right hand, he simultaneously reached with his left hand back into the truck in the area under the driver’s seat. Officer Nicklow tried to see what Dixie was doing and told him, “Just don’t grab ... here, here I’ll get it. Don’t go digging for nothing.”
Officer Nicklow then showed Dixie the broken taillight. Seconds later, he said: “Before I give you [your license and registration] back, you got any weapons or anything on you that I need to know about?” Dixie immediately acknowledged that he was carrying a knife and reached for his pants pocket. Officer Nicklow told Dixie to keep his hands still and began a frisk. As he searched, he asked Dixie if he had anything else. Dixie pointed to his jacket pocket. After some evasive and unintelligible responses, Dixie admitted to having a gun. At this point Dixie was placed under arrest.
*519The officers recovered a loaded gun from Dixie’s hip area and crack cocaine from his pocket. Officer Nieklow asked Dixie why he was carrying a gun and inquired if it was related to the “white stuff.” Dixie said it was. Officer Nieklow eventually learned from dispatch that Dixie did not have a permit for the gun and that he had prior felony convictions.
Following his arrest, Dixie was interviewed at the Fort Wayne Police Department by Detectives Miguel Rivera and Teresa Smith. Dixie was read his Miranda rights prior to this interview, and he acknowledged and waived his rights in order to cooperate with the police. He admitted his involvement in drug dealing and said he carried his firearm for protection during drug deals. After the interview was completed, Dixie was released from custody to assist the police as a confidential informant against other drug dealers. Two days later, on March 8, Dixie voluntarily met again with the detectives and repeated his incriminating statements.
Dixie concedes that the initial traffic stop was valid on account of his broken taillight. He contends, however, that Officer Nieklow’s questioning unreasonably prolonged an otherwise lawful detention and was not justified by the purpose of the investigatory stop. Officer Nieklow had already decided not to cite him for the broken taillight, so Dixie argues that the question about weapons constituted an unreasonable extension of the seizure and that all the evidence recovered thereafter — the drugs, gun, and Dixie’s self-incriminating statements of March 6 and March 8 — should have been suppressed.2
On an appeal of a denial of a suppression motion, we review the district court’s legal conclusions de novo and its factual findings for clear error. United States v. Are, 590 F.3d 499, 504 (7th Cir.2009). The district court concluded that Dixie’s suppression argument was foreclosed by our opinion in United States v. Childs, 277 F.3d 947 (7th Cir.2002) (en banc); this conclusion was manifestly correct. In Childs we explicitly held that the Fourth Amendment does not require the release of a person from a traffic stop “at the earliest moment that step can be accomplished.” Id, at 953-54. Instead, “[w]hat the Constitution requires is that the entire process remain reasonable. Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention.” Id. at 954. The Supreme Court has recently confirmed this understanding. See Arizona v. Johnson, — U.S. -, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”).
Here, the district court noted that it took “only seconds longer” for Officer Nieklow to ask Dixie about any weapons on his person and then to recover Dixie’s knife and unlicensed gun when he answered in the affirmative. Indeed, Dixie has conceded, both in his brief and at oral argument, that the increased length of the detention was “nominal.” Accordingly, the officer’s actions cannot be said to have caused Dixie any appreciable inconvenience or to have unreasonably prolonged the duration of the stop. Dixie emphasizes that Officer Nieklow withheld his license *520and registration while he inquired about weapons, thus appearing to condition the return of the documents on Dixie’s response to the question. This establishes only that the seizure continued, not that it was unreasonable. A seizure does not have to be consensual to be reasonable. See, e.g., Johnson, 129 S.Ct. at 787-88. The district court properly denied Dixie’s suppression motion.
There is one outstanding issue. Dixie also argues that his two statements to Detectives Rivera and Smith should have been suppressed under Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), because although they were preceded by proper Miranda warnings, his earlier statement to Officer Nicklow was not. He maintains that his unwarned statement at the scene of the traffic stop tainted his later, fully warned statements, requiring suppression of the latter.
Seiberi was decided by a deeply divided Supreme Court; we have previously explained that Justice Kennedy’s separate concurrence represents the narrowest ground of the decision. United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir.2004). And Justice Kennedy’s opinion was limited to the deliberate use of a two-step interrogation process in which Miranda warnings are withheld until after the suspect confesses; when the police intentionally “question first and warn later,” the admissibility of the second, Mirandized confession depends on an evaluation of the change in time, place, and circumstances between the unwarned and warned confessions. Id.
As the government notes, however, Dixie invoked Seiberi for the first time on appeal. His only argument in the district court was that his inculpatory statements were the fruit of an unreasonable seizure and accompanying search. In his plea agreement, Dixie expressly waived his right to appeal, save for “the issues decided” by the district court in its ruling on the suppression motion. The district judge did not decide the Seibert issue because it was never raised. Dixie has therefore waived this issue, and we are precluded from considering it on appeal. See United States v. Hamilton, 499 F.3d 734, 735 (7th Cir.2007).
AFFIRMED.
. This was a violation of section 9-19-6-4 of the Indiana Code.
. During the suppression hearing, the government stipulated that it would not seek to admit the non-Mirandized statement Dixie made to Officer Nieklow at the scene immediately following his arrest. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480021/ | MEMORANDUM **
Horacio Alcaraz Sanchez and Imelda Al-caraz, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and grant in part the petition for review, and remand for further proceedings.
The BIA did not abuse its discretion by denying the motion to reopen with regard to Alcaraz’s diagnosis of hyperthyroidism where the evidence submitted was insufficient to establish prima facie eligibility for cancellation of removal. 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 did abuse its discretion by denying the motion with regard to petitioners’ son’s learning disability. The BIA determined that petitioners failed to present new evidence of their son’s learning disability. However, the record shows that at the time of their hearing in May 2005, their son’s Individualized Education Program dated June 9, 2004, did not indicate a learning disability. See 8 C.F.R. § 1003.2(a), (c). Petitioners’ new Individualized Education Program dated May 19, 2006, submitted with the motion, does indicate a learning disability.
We remand to the BIA for reconsideration of petitioners’ motion to reopen consistent with this disposition.
*589Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480023/ | MEMORANDUM **
Sergiy Karlovich, a native and citizen of Ukraine, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention *611Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we deny in part and dismiss in part the petition for review.
Karlovich claims that the Ukrainian authorities are still interested in him based on his refusal to serve in the then Soviet-controlled military over 20 years ago. Substantial evidence supports the IJ’s finding that this claim lacked inherent plausibility. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir.2005) (noting that testimony that is implausible in light of objective evidence can support an adverse credibility finding). Substantial evidence further supports the IJ’s adverse credibility determination because Karlovich’s asylum application omitted the fact that the police were constantly looking for him at his home and work for over 20 years, and this omission goes to the heart of his claim. See Li v. Ashcroft, 378 F.3d 959, 962-64 (9th Cir.2004). In the absence of credible testimony, Karlovich’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Karlovich’s CAT claim is based on the same statements found to be not credible, and he does not point to any other evidence in the record that compels the conclusion it is more likely than not he would be tortured if returned to Ukraine, substantial evidence supports the IJ’s denial of CAT relief. See id. at 1156-57.
To the extent Karlovich contends the IJ demonstrated bias, we lack jurisdiction to review this claim because it was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480024/ | MEMORANDUM **
Hotman Napitupulu, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) 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, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and we deny in part and grant in part the petition for review, and we remand.
The record does not compel the conclusion that changed circumstances excused Napitupulu’s untimely filed asylum application. See 8 C.F.R. § 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Napitupulu’s contention that the BIA’s decision concerning changed circumstances was boilerplate is without merit. Accordingly, Napitupulu’s asylum claim fails.
Substantial evidence supports the BIA’s determination that the one attack and beating Napitupulu suffered in Indonesia did not rise to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). In analyzing Napitupulu’s withholding of removal claim, the BIA declined to apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004). Because intervening case law holds the disfavored group analysis applies to withholding of removal claims, see Wakkary, 558 F.3d at 1062-65, we remand to the agency for reconsidera*616tion whether Napitupulu is entitled to withholding of removal, see INS v. Ventu-ra, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam): see also Tampubolon v. Holder, 598 F.3d 521, 526-27 (9th Cir.2010) (“any reasonable factfin-der would be compelled to conclude on this record that Christian Indonesians are a disfavored group.”).
In his opening brief, Napitupulu does not challenge the BIA’s denial of his application for CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
Each party shall bear its own costs for this petition for review.
PETITION GRANTED in part; DENIED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480025/ | JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480026/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is
ORDERED AND ADJUDGED that the judgment of the District Court be affirmed.
In June 2006 Morris Days was hired by appellee Council on American-Islamic Relations Actions Network, Inc. (“CAIR”) as an attorney to represent Muslim clients on various legal issues. In November 2007 CAIR learned that, contrary to CAIR policy, Days had been collecting legal fees from some of these clients. In February 2008 Days, who was not authorized to practice law, was terminated by CAIR. The appellants (the plaintiffs below), consisting of several clients alleging damages incurred by Days’ fraudulent representation of them, subsequently filed a Complaint in the district court alleging, inter alia, that the appellees (defendants below) conspired to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d). The district court dismissed the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, determining that the plaintiffs did not have standing to bring a RICO claim. In particular, the district court concluded that the plaintiffs’ Complaint did not allege a conspiracy to violate RICO but rather alleged damages resulting from Days’ fraudulent actions and separately alleged a conspiracy to cover-up the alleged fraud.
The plaintiffs now appeal, arguing that, contrary to the conclusion of the district court, their Complaint alleges a single conspiracy beginning at the time Days was hired and which proximately caused them to suffer multiple RICO damages. We disagree. A reading of the Complaint reveals no allegation of a conspiracy to commit a RICO violation by which the appellants were harmed, and neither the arguments made in appellants’ briefs nor the arguments made by appellants’ counsel at oral argument persuades us that appellants’ Complaint even approaches making out such a conspiracy.
We will therefore not disturb the judgment of the district court.
*2Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed R.App. P. 41(b); D.C.Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480028/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. It is
ORDERED AND ADJUDGED that the district court’s order filed March 9, 2010, be affirmed. The district court did not abuse its discretion in dismissing the complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a). To comply with this rule, the complaint should identify the “circumstances, occurrences, and events” that support the claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The dismissal without prejudice allows appellant to file a new complaint that meets these requirements. See Ciralsky, 355 F.3d at 671.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480029/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court *5for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders entered February 20, 2009 and March 17, 2009 be affirmed. Under the Rooker-Feldman doctrine, “a United States District Court has no authority to review final judgments of a state court in judicial proceedings.” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The decision of the District of Columbia Court of Appeals denying appellant’s petition for writ of mandamus bars his claim in this case as stated in either his original complaint or amended complaint. Therefore, dismissal of appellant’s complaint for lack of subject matter jurisdiction was proper, see Fed.R.Civ.P. 12(h)(3), and the district court did not abuse its discretion in denying Appellant’s motion under Fed.R.Civ.P. 59(e) to alter or amend the judgment because amendment of his complaint would have been futile. See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480030/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(3). It is
ORDERED AND ADJUDGED that the district court’s order filed April 7, 2010, be affirmed. The district court correctly dismissed the action without prejudice on the ground that appellant had not provided proof the defendants were served with a summons and a copy of the complaint or responded to the court’s order with an explanation for his failure to do so. See Fed.R.Civ.P. 4 — Summons. Because the complaint had not been served, the district court properly denied appellant’s motions for preliminary relief, including the motions for appointment of counsel and motions to appear in person for mediation.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480031/ | JUDGMENT
PER CURIAM.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs of the parties pursuant to D.C. Circuit Rule 34(j). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed. Phillip S. Woodruff challenges an adverse decision of the Merit Systems Protection Board (MSPB), alleging discrimination and other misconduct by the administrative law judge who handled his case. The district court properly dismissed Woodruffs complaint for failure to state a claim.
We directed the parties to address the timeliness of this appeal. The district court issued an order purporting to dismiss this case in March 2008 but stated in that order, “[T]his Order shall not be deemed a final order subject to appeal until the Court has issued its Memorandum Opinion in this matter.” Woodruff v. McPhie, No. 06-688 (D.D.C. Mar. 28, 2008). Ten months later, the court issued its opinion, and this appeal followed. As measured from the opinion, the appeal is timely, but as measured from the earlier order, it is not. Pursuant to our decision in St. Marks Place Housing Co. v. HUD, 610 F.3d 75 (D.C.Cir.2010), we conclude that the court did not issue a final decision, which was necessary to start the clock for an appeal, until it released its memorandum opinion. See 28 U.S.C. § 1291 (appeals arise from district courts’ “final decisions”). Because Woodruff timely filed his notice of appeal following that opinion, we have jurisdiction.
On the merits, Woodruff alleges that the MSPB violated; 1642; 1642Title; 1643; 1643VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the; 1665; 1665Age; 1666; 1666Discrimination in; 1668; 1668Employment; 1669; 1669Act (ADEA), as amended by the Older Workers’ Benefit Act, 29 U.S.C. § 621 et seq., in its handling of his employment appeal. Neither statute, however, creates a cause of action against the MSPB for its processing of a case. See Smith v. Casellas, 119 F.3d 33, 34 (D.C.Cir.1997) (“Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC’s alleged negligence or other malfeasance in processing an employment discrimination charge.”); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir.1984) (rejecting Title VII claim against the EEOC for its handling of a discrimination complaint); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir.1983) (same); *7Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir.1978) (same). To the extent Woodruff has a claim under either Title VII or the ADEA, it is against his former employer, the Department of Transportation.
Woodruff insists that the MSPB’s EEO Office told him that bringing this action was the proper way to contest the Board’s handling of his case. But as the district court stated, “[e]ven if [Woodruff] is correct ... the critical question is whether the Court can provide the relief [he] seeks,” and under Title VII and the ADEA, we cannot. Woodruff v. McPhie, 593 F.Supp.2d 272, 277 (D.D.C.2009).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480032/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders filed June 9, 2009, and September 21, 2009, be affirmed. The district court properly dismissed appellant’s qui tam action. The False Claims Act “give[s] the government an unfettered right to dismiss [a qui tam] action,” Swift v. United States, 318 F.3d 250, 252 (D.C.Cir.2003), and the government’s decision to dismiss the action is not reviewable, see Hoyte v. American National Red Cross, 518 F.3d 61, 65 (D.C.Cir.2008). Appellant has not shown that he is entitled to discovery of the information the Department of Justice used in deciding to dismiss his qui tam action. See Swift, 318 F.3d at 254 (“[A] party is not entitled to discovery of information relating to prosecutorial decisions absent a substantial threshold showing.”) (citing United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)). Nor has appellant demonstrated that the Department of Justice and the Attorney General have a *8conflict of interest because the case involves claims against the President.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480048/ | PER CURIAM: *
The Federal Public Defender appointed to represent Rodolfo Santiago Perez-Rivera has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Perez-Rivera has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480034/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Circuit Rule 36(d). It is
ORDERED AND ADJUDGED that the judgment of the District Court be affirmed in part and reversed in part.
LogLogic, Inc., a data technology company, terminated Amy Maldonado from her position as a director of sales in November 2005. Maldonado brought suit against LogLogic, alleging it breached her compensation contract and the implied covenant of good faith and fair dealing applicable to the contract under California law. She also lodged a federal sex discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging LogLogic terminated her because she was pregnant. The district court granted summary judgment on all claims in LogLogic’s favor, finding no contract breach and determining that Maldonado failed to produce evidence by which a jury could reasonably conclude she was the victim of sex discrimination.
Maldonado now appeals. She argues her compensation contract entitles her to commissions for certain sales made while she was employed and that the covenant of good faith and fair dealing entitles her to commissions for sales completed after her termination and to stock options whose scheduled vesting post-dated her termination. She also contends that she produced evidence sufficient for a jury to find that LogLogic’s asserted reason for terminating her was a pretext for sex discrimination.
Maldonado succeeds on one aspect of her breach of contract claim. She claims she closed a $10,000 deal with the United States Postal Service within her assigned sales territory in September 2005, and LogLogic does not contest this point. Maldonado’s contract grants her a commission for “all sales [she] closes in [her] Sales Territory,” and states that “[c]ommissions are earned on the date of the Eligible Sale.” That language plainly entitles her to a commission for the September 2005 sale, and we reverse the district court’s order with respect to this specific claim.
We affirm the district court, however, with respect to the other sales for which Maldonado claims credit. Maldonado did not close the February 2005 and October 2005 deals with JPMorgan Chase within her territory, and to the extent she was involved in either sale, there is no evidence she attempted to negotiate a commission split with the closing sales director as required by her contract. She is therefore not entitled to commissions for these two deals. She is also not entitled to commissions earned by others after her termination or to stock options scheduled to vest after her termination date. Maldonado argues that LogLogic deprived her of this compensation in violation of California’s implied covenant of good faith and fair dealing when it terminated her. But that covenant only applies when an employer terminates an employee before conveying a “benefit to which the employee was clearly entitled.” Guz v. Bechtel *11Nat’l, Inc., 24 Cal.4th 317, 353 n. 18, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (Cal.2000). Maldonado was not “clearly entitled” to the compensation at issue. Her contract is clear that commissions are earned on the date of the sale and that the “VESTING OF SHARES ... IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY.” Under those terms, Maldonado cannot invoke the protection of the covenant.
Maldonado’s sex discrimination claim also fails. When a Title VII defendant asserts a legitimate, non-diserimina-tory reason for a termination, a plaintiff wishing to survive summary judgment must produce evidence upon which a reasonable jury can find the defendant’s reason to be a mere pretext for improper discrimination. See Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). LogLogie identifies lackluster sales and Maldonado’s failure to confirm a sales meeting with a client as the legitimate grounds for her firing. None of the evidence produced by Maldonado substantially undermines those grounds. She does not disprove that her sales fell below pre-determined targets or that she failed to confirm the sales meeting, does not demonstrate that LogLogic’s motive for firing her was not based on these failings, and does not show that Log-Logic treated similarly situated male employees more favorably. Because she does not identify any factual inaccuracy “accompanied by a suspicion of mendacity” in LogLogic’s asserted grounds, Maldonado fails to carry her burden. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C.Cir.1998).
For the foregoing reasons, we reverse the district court on the breach of contract issue pertaining to the September 2005 sale to the United States Postal Service and affirm in all other respects.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480035/ | SUMMARY ORDER
The NLRB seeks an order enforcing a September 30, 2007 decision and order and a September 25, 2008 decision and order awarding backpay against Domsey Trading Corporation, Domsey Fiber Corporation and Domsey International Sales Corporation, a single employer (“Domsey Trading Corp.”). Domsey Trading Corp. has filed a cross-petition for review. In light of the Supreme Court’s decision in New Process Steel, L.P. v. National Labor Relations Board, — U.S. -, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010), the NLRB’s petition for review is DENIED and Domsey Trading Corp.’s petition for review is DISMISSED as premature. See NLRB v. Talmadge Park, 608 F.3d 913 (2d Cir.2010). If, after further proceedings before the NLRB, a new petition for enforcement or petition for review is filed, the Clerk’s Office shall refer the petition to this panel. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480036/ | MEMORANDUM **
This is an appeal from the district court’s denial of a motion under Federal *66Rules of Civil Procedure 59 and 60 to set aside a judgment affirming a bankruptcy court judgment dismissing appellant Sar-ma’s lawsuit.1
Appellant contends the bankruptcy court had no authority to enter a final order dismissing the ease. Appellant’s consent to such authority was properly implied from his affirmative actions, including his choice to remove the case to bankruptcy court. See In re Mann, 907 F.2d 923, 926 (9th Cir.1990). Appellant’s failure to contest the bankruptcy court’s authority on prior appeal in this court means that argument is waived for purposes of this appeal. See Securities Investor Protection Corp. v. Vigman, 74 F.3d 932, 937 (9th Cir.1996).
Further, neither the district court nor the bankruptcy court erred by failing to abstain from considering the state law claims after appellant removed the case to bankruptcy court, and did not move for abstention following removal. See 28 U.S.C. § 1334(c)(2); Security Farms v. Int’l Broth. of Teamsters (In re Gen. Teamsters, Warehousemen & Helpers Union Local 890), 124 F.3d 999, 1009-10 (9th Cir.1997).
Accordingly, we grant appellee’s motion for summary affirmance.
All other pending motions are denied as moot.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The panel that considered prior appeals nos. 05-15311 and 05-15384 declines to hear this appeal. Appellee’s motion to assign this appeal to the prior panel is therefore denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480037/ | OPINION OF THE COURT
ALDISERT, Circuit Judge.
Yan Yun Ye seeks review of an order of the Board of Immigration Appeals (“BIA” or “Board”) denying her motion to reopen her immigration proceedings.1 As set forth below, we will grant the petition, vacate the BIA’s decision below and remand for further proceedings consistent with this opinion.
I.
Yan Yun Ye, a native and citizen of the People’s Republic of China, attempted to enter the United States on April 12, 1998, and was placed in removal proceedings. On June 3, 1998, she applied for asylum and appeared before an Immigration Judge (“U” or “judge”). On March 31, 1999, the IJ ordered Ye removed to China in absentia when she failed to appear at a scheduled hearing. She did not seek review.
Nearly eight years later, on March 15, 2007, Ye filed a motion to reopen her proceedings. Under the applicable regulations, a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). An exception exists, however, for motions to reopen “to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality ..., if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(h); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). Invoking this exception, Ye argued that her motion to reopen was not time-barred because conditions had changed in the Fujian Province of China, the place to which she would be deported. Ye submitted evidence that the Fujian Province had recently increased “the extent and severity of persecutive means employed to enforce the country’s Population and Family Planning Laws.” *115(App.81.) She contended that, if removed, she was likely to be sterilized.
After considering Ye’s evidence, the IJ denied the motion and ruled that Ye failed to show a material change in China’s family planning policies. (App.41-43.) Alternatively, the IJ ruled that Ye’s motion to reopen was altogether barred by the fugitive disentitlement doctrine because Ye had “avoid[ed] the attention of immigration authorities since March 31, 1999” when she was ordered removed. (App.43.) On review, the BIA dismissed Ye’s appeal, agreeing -with the IJ on both grounds.2 This petition followed.
II.
Because the BIA issued a decision on the merits, we review the order of the BIA rather than that of the IJ. Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). We review the BIA’s denial of a motion to reopen for abuse of discretion, and we will uphold its decision unless it was arbitrary, irrational or contrary to law. See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We apply a similarly deferential standard to the BIA’s factual findings, which we review for substantial evidence. See id.
III.
We first address Ye’s argument that the BIA erred in holding that her motion to reopen was altogether barred by the fugitive disentitlement doctrine.3 Under the fugitive disentitlement doctrine, an appellate court may dismiss the appeal of a convicted felon who becomes a fugitive during the appellate process. See Smith v. United States, 94 U.S. 97, 97, 24 L.Ed. 32 (1876). In the immigration context, we have applied the doctrine to one “who is subject to an order of deportation but who has hidden his whereabouts from immigration authorities and this [appellate] Court.” Arana v. INS, 673 F.2d 75, 76 (3d Cir.1982). As with criminal fugitives, a fugitive alien “disentitles himself from calling upon the resources of this Court” by “concealing] himself from this Court, the District Court and the INS.” Id. at 77 (quotation, citation and alteration omitted).
Ye directs a number of legal, constitutional and policy arguments to the proposition that the doctrine does not and should not apply to her. After reviewing the BIA’s decision, however, we are not satisfied that the BIA’s written opinion offers an explanation sufficient for our review. In its one-sentence application of the fugitive disentitlement doctrine to Ye’s case, the BIA explained that
because [Ye] was ordered removed in absentia in 1999, has not challenged the order for lack of notice, and has evaded removal nearly 10 years, we find that the Immigration Judge appropriately applied the fugitive disentitlement doctrine to [Ye’s] case and concluded that reopening is not warranted.
(App.3.)
From this, we are unable to ascertain even the factual predicates of the BIA’s *116fugitive disentitlement ruling, much less review them for “substantial evidence.” Although the IJ’s opinion, the record and the parties’ briefs give us the impression that Ye’s whereabouts are now known by immigration officials {e.g., App. 63), the BIA’s opinion suggests otherwise (see App. 3). Significantly, the BIA’s statement that Ye “evaded removal nearly 10 years” suggests that Ye remained at large from the date of her removal order (March 31, 1999) to the date of the BIA’s opinion (June 3, 2008), and implies that Ye did not present herself to officials when she moved to reopen (March 15, 2007). Nothing in the BIA’s statement of facts suggests otherwise. Yet, if the BIA believed that petitioner Ye was actually at large, it likely would have mentioned that fact, as neither this Court nor “[any] court has ever applied the doctrine to an alien whose whereabouts are known and who has not fled from custody.” Sun v. Mukasey, 555 F.3d 802, 804 (9th Cir.2009); see Arana, 673 F.2d at 77. We are thus uncertain of the BIA’s factual assumptions, and we can conduct no meaningful factual review.
Our factual uncertainty also prevents us from reviewing the legal standards underlying the BIA’s fugitive disentitlement holding, as the facts bear heavily on the lega] analysis. If Ye’s whereabouts have been unknown at any time since she moved to reopen her proceedings in March of 2007, our decision in Arana may provide clear authority for application of the doctrine to Ye’s case. See Arana, 673 F.2d at 77 (applying the fugitive disentitlement doctrine to an alien whose whereabouts were unknown during the review process). On the other hand, if Ye presented herself to authorities, the BIA’s application of the doctrine to Ye’s case takes a much more controversial position, as no Court of Appeals has applied the doctrine to a petitioner who is available to immigration officials during the review process. Sun, 555 F.3d at 804; Arana, 673 F.2d at 77. We simply cannot review the BIA’s legal ruling without the advantage of these basic facts.
As we will explain in Part IV, the BIA’s alternative ground for dismissing Ye’s appeal is also insufficient. Consequently, we must grant the petition, vacate and remand to the BIA. On remand, we direct the BIA to explain more precisely the facts and circumstances justifying its fugitive disentitlement analysis. If the BIA determines that “further factfinding is needed,” it may of course “remand the proceeding to the immigration judge or, as appropriate, to the Service.” 8 C.F.R. § 1003.1(d)(3)(iv). In addition, because the BIA is obligated to “actually consider the evidence and argument that a party presents,” Abdulai, 239 F.3d at 549, the BIA should consider Ye’s sworn statement that she never received notice of her deportation hearing. (App. 102 ¶ 1.) A-though not necessarily determinative, we believe that evidence has some bearing on whether Ye was a fugitive within the meaning of the doctrine. Finally, if the facts are not as the BIA had assumed, the BIA should reconsider its application of the fugitive disentitlement doctrine. In any case, the BIA should set forth an explanation sufficient for our review.
IV.
Because the BIA denied Ye’s motion to reopen on an alternative ground— her failure to establish changed conditions in the Fujian Province of China — we must address Ye’s objections to that aspect of the BIA’s decision. See Larngar v. Holder, 562 F.3d 71, 78 (1st Cir.2009). To the extent the BIA intends to place continued reliance on this decisional ground, the following discussion governs the analysis.
Ye contends that her evidence was sufficient to establish changed conditions in *117China, and that we should grant her motion to reopen. We are more persuaded, however, by Ye’s alternative due process argument. In this regard, Ye contends that the BIA impermissibly ignored her evidence and relied entirely on its prior decisions concerning conditions in the Fuji-an Province. We agree. Ye’s case is on all fours with Zheng v. Attorney General, 549 F.3d 260 (3d Cir.2008), which was decided approximately one month after Ye submitted her brief (but before the Government submitted its own brief). Although neither party has brought Zheng to our attention, that case compels the conclusion that the BIA’s country-conditions analysis was insufficient as a matter of due process.4
In Zheng, we applied due process principles to vacate the BIA’s denials of two petitioners’ motions to reopen based on changed country conditions, where the BIA’s opinion “failed to discuss most of the evidentiary record.” Id. at 268-269. Although we did not impose a rule requiring “the BIA [to] expressly parse or refute on the record each individual argument or piece of evidence,” we did affirm that
[t]he BIA should demonstrate that it has considered [the petitioner’s evidence of changed country conditions], even if only to dismiss it. In so doing, the BIA should provide us with more than cursory, summary or conclusory statements, so that we are able to discern its reasons for declining to afford relief to a petitioner.
Id. at 268 (quoting Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006)). Moreover, we emphasized that the BIA’s duty to consider an applicant’s relevant evidence may be even “ ‘greater ... in the context of motions to reopen based on changed country eonditions.’” Id. (quoting Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.2006)).
Applying those precepts, we determined with little difficulty that the BIA had conducted an insufficient review of both petitioners’ motions to reopen. In petitioner Zheng’s case, “the BIA did little more than quote passages from its earlier decision in J-W-S-l 24 I. & N. Dec. 185 (BIA 2007),] without identifying — let alone discussing— the various statements contained in the record.” Zheng, 549 F.3d at 268-269. In petitioner Chen’s case, the BIA’s review was even more cursory:
[T]he BIA failed to refer to most of the documents that Chen submitted in support of his motion, whether explicitly or by citation to an earlier decision.... In fact, the BIA’s discussion ... amounts to a series of conclusory statements, and fails to offer even a cursory review of the record. For example, the BIA stated that “[Chen] has not provided sufficient evidence that any sanctions [he] may experience if he returns to China would rise to the level of persecution.”
Id. at 270-271 (footnote omitted). Although we acknowledged that the BIA’s summary conclusions may have been correct, we held that the BIA’s review was insufficient as a matter of due process. See id. at 271-272. Given the BIA’s failure to discuss either petitioner’s evidentia-ry record, we vacated and remanded the BIA’s denials of both petitioners’ motions to reopen. Id. at 271.
Zheng compels the same result here. In affirming the IJ’s determination that Ye’s motion to reopen was untimely, the BIA stated:
After reviewing the background material considered by the Immigration Judge, *118we are not convinced that the evidence shows a material change.... Given the recent extensive analysis undertaken by the Board of the situation in China, and in particular [Ye’s] Fujian Province, the evidence submitted is insufficient to meet the heavy burden of proof required to grant an untimely motion to reopen [her] removal proceedings. See Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); Matter of J-H-S-, 24 I. & N. Dec. 196 (BIA 2007); Matter of J-W-S-24 I. & N. Dec. 185 (BIA 2007).
(App.2-3.) The balance of the BIA’s discussion explained its holdings in S-Y-G-, JH-S-, and J-W-S-, and referred only generally to the insufficiency of “the additional documents provided by the respondent.” (App.3.) As in Zheng, the BIA’s review “amounted] to a series of conclusory statements, and fail[ed] to offer even a cursory review of the record.” Zheng, 549 F.3d at 271.
Contrary to the Government’s contention, the BIA was not entitled to substitute its own precedents for the individualized evidentiary review to which petitioner Ye was entitled. Rejecting that same contention in Zheng, we ruled that
where the evidentiary record contains documents that were not at issue in an earlier decision, mere reference to that earlier decision is insufficient to warrant adopting its conclusions. Rather, the BIA must assess any evidence that bears on the questions of fact which it must decide.
Id. at 271 n. 7 (citation omitted). Although the Board was entitled to consider its “recent extensive analysis ... of the situation in China” (App.2), it could not ignore the portions of Ye’s evidence that were not addressed in those cases.5 Nor could it rely on its prior decisions without satisfying itself that Ye’s evidence was in fact the same as, or substantially similar to, the evidence rejected in those cases. As in Zheng, the BIA’s decision provides no information regarding its rationale for deeming Ye’s evidence irrelevant or unpersuasive.
Consequently, Zheng forecloses the BIA from resting its dismissal on its determination that Ye did not meet her burden of establishing changed country conditions in China, as that determination was inconsistent with due process. If the BIA intends to place continued reliance on this alternative decisional ground, on remand it must reconsider Ye’s arguments and “make a more complete analysis of the evidence [she has] submitted.” Zheng, 549 F.3d at 272.
V.
We have considered all contentions raised by the parties and conclude that no further discussion is necessary. For the foregoing reasons, we will grant Ye’s petition for review, vacate the BIA’s decision below and remand for further proceedings consistent with this opinion.
. The BIA had authority to review the IJ's denial of Ye's motion to reopen pursuant to 8 C.F.R. § 1003.1(b)(3). This Court has jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252.
. Both parties briefed the issue whether Ye made out a prima facie case for asylum, but that issue is not before us. Neither the IJ nor the BIA ultimately reached this issue. (See App. 2-3 (BIA decision); 41-43 (IJ decision).) Consequently, we have nothing to review. Cf. Abdulai v. Ashcroft, 239 F.3d 542, 548-549 (3d Cir.2001).
. The petitioner failed to include a summary of her argument in her brief as required by Rule 28(a)(8) of the Federal Rules of Appellate Procedure. The petitioner also failed to label volume one of the Appendix, as required under Local Appellate Rule 32.2(c), complicating our efforts to cite and access documents in the Appendix. We encourage counsel to comply with these rules, as they facilitate our efficient review.
. Given that Ye's counsel, Gary J. Yerman, was also the counsel of record in the Zheng case, we are perplexed by Ye's failure to notify us of that case in a letter submitted under Rule 28(j) of the Federal Rules of Appellate Procedure.
. Our review satisfies us that Ye submitted many documents that were not at issue in the past decisions upon which the BIA’s opinion relied. This evidence includes, but is not limited to, Ye's affidavit, the Policy Statement from the Administrative Office of the National Population and Family Planning Committee, the Changle City Q & A, Wu’s congressional testimony, and two news articles. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480038/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Lenroy Brian Forteau petitions for review of the Board of Immigration Appeals’ (“BIA”) ruling vacating the Immigration Judge’s ruling that Forteau was eligible for cancellation of removal, sustaining the Department of Homeland Security’s (“DHS”) appeal, and ordering Forteau removed to Grenada. Forteau claims that he was denied his right to counsel in front of the BIA. We agree, will grant Forteau’s petition for review, and will remand this case to the BIA for further proceedings.
BACKGROUND:
On March 9, 1979, at age 19, Forteau, a citizen of Grenada, entered the United States as a lawful permanent resident. Twenty-seven years later, on September 29, 2006, the Immigration Judge found Forteau subject to removal for a conviction involving child abuse, neglect or abandonment.1 However, two months later the Immigration Judge found Forteau eligible for cancellation of removal as a lawful permanent resident pursuant to § 240A(a) of the Immigration and Nationality Act. DHS appealed that decision and on April 10, 2007, the BIA sustained the DHS’ appeal, vacated the Immigration Judge’s order, and ordered Forteau removed to Grenada. Shortly thereafter, Forteau filed a pro se appeal. On July 20, 2007, 240 Fed.Appx. 531, we remanded the case to the BIA because the BIA engaged in independent fact finding and did not review the Immigration Judge’s factual findings for clear error. We also appointed counsel for For-teau, stating, “[t]he clerk will locate counsel willing to represent Petitioner, if Petitioner so desires.” Forteau v. Att’y Gen., 240 Fed.Appx. 531, 534 (3d Cir.2007).
On August 8, 2007, we entered an order stating that Forteau had accepted the appointed counsel, Steven Morley. On September 12, 2007, Forteau wrote to the BIA inquiring as to the status of his case. Morley entered his appearance with the BIA on September 19, 2007. On September 24, 2007, the BIA responded to For-teau’s letter and stated that his case was still pending. On June 10, 2008, Morley re-entered his appearance and requested that the BIA expedite issuance of the hearing transcript and a briefing schedule. A week after this request, the BIA issued a decision ordering Forteau removed to Grenada. The BIA’s decision on remand, *153reviewing for clear error, concluded that the Immigration Judge had not clearly erred in his factual findings regarding Forteau’s testimony, but the BIA again disagreed with the Immigration Judge’s ruling. The BIA noted that Forteau had lived in the United States since 1979, that he has family in the U.S. and that he had a solid employment record. However, the BIA found that these positive equities were outweighed by Forteau’s two criminal convictions and the fact that he had only sporadically filed federal tax returns.2 In this decision, the BIA did not mention counsel and noted that Forteau’s pro se reply brief to DHS’s appeal was “not responsive.” App. 3.
On June 30, 2008, Forteau filed a Petition for Review with this Court. On August 21, 2008, we issued an order staying Forteau’s removal, but he was nevertheless removed to Grenada that same day.3 On September 16, 2008 we ordered that Forteau be returned to the United States. He was returned on June 25, 2009 and placed in ICE custody in Lackawanna County Prison.
DISCUSSION:
Forteau contends that the BIA violated his right to counsel and his right to due process and that he was prejudiced by these violations. Forteau points out that not only did the BIA issue a decision without any input from appointed counsel, but it ignored our clear intent and directive that Forteau have counsel to present his case on remand in proceedings before the BIA if he wished to be represented. We have jurisdiction to review Forteau’s claim under 8 U.S.C. § 1252(b)(2).
An alien has a statutory right to counsel for proceedings in front of the BIA under 8 U.S.C. § 1362, and a constitutional right to counsel based on the Fifth Amendment’s guarantee of due process of law. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374 (3d Cir.2003); see also Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir.2005). A mere “inability to obtain” counsel, or poor law-yering, does not violate a petitioner’s right to counsel. Ponce-Leiva, 331 F.3d at 376. However, we have held that the right to counsel was violated, for example, where petitioner’s counsel was not given notice of petitioner’s deportation hearing and the immigration judge proceeded with the hearing despite petitioner’s requests to consult with his attorney. Chlomos v. United States Dept. of Justice, 516 F.2d 310, 313-14 (3d Cir.1975); see also Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir.1975) (holding that the right to counsel was violated where an immigration judge denied a continuance request without justification and forced petitioners to proceed without representation).
An alien’s right to counsel is violated where there is “undue curtailment of the privilege of representation.” Chlomos, 516 F.2d at 311. The curtailment here was certainly undue, as the BIA states no *154reason for issuing its decision without allowing Forteau’s counsel to participate in the proceedings. The BIA not only ignored our order appointing counsel, but also ignored Forteau’s counsel’s request for a briefing schedule. When we appoint counsel we expect the BIA to hear from counsel before ruling. Because Forteau’s counsel was prevented from representing Forteau in any meaningful way, despite requesting the opportunity to do so, the BIA violated Forteau’s right to counsel.4
Forteau was prejudiced by the denial of his right to counsel. His counsel was unable to present to the BIA all of the positive facts and factors that should have been weighed in Forteau’s favor. For example, Forteau’s counsel states that he would have pointed out that long residence in the United States beginning at a young age can, on its own, establish outstanding and unusual equities. See Matter of Arreguin, 21 I & N Dec. 38 (BIA 1995). For-teau’s counsel would have emphasized that Forteau has lived in the United States for almost 30 years and obtained a degree in business administration from the University of California. Additionally, counsel would have told the BIA that Forteau is a disciplined marathon runner who has been steadily employed while in the United States, mostly in retail sporting goods stores.
Furthermore, Forteau’s counsel states that the BIA failed to consider the hardship resulting from family separation. The BIA must give sufficient consideration to family hardship. Tipu v. INS, 20 F.3d 580, 583 (3d Cir.1994). The BIA noted that Forteau has three brothers (he aetually has 4 brothers), two sisters, and several nieces and nephews who live in the United States and with whom he has regular contact. However, the BIA seemed to discount these relationships, noting that For-teau is not married, has no children, and provides no financial support to any family members. The BIA did not specifically address the hardship that Forteau or his six siblings, eight nieces, and three nephews would experience from being separated. The participation of Forteau’s counsel may well have better highlighted these factors.
Forteau’s counsel also would have argued to the BIA that there are numerous mitigating factors surrounding Forteau’s criminal history, on which the Immigration Judge relied. Specifically, Morley would have pointed out that the convictions are relatively old and not serious, and that Forteau’s criminal record as a whole is minor.
Lastly, Forteau’s counsel would have attempted to persuade the BIA of the great hardship that Forteau personally would suffer if removed to a country that he left as a child and that he has only visited once for a wedding many years ago. The BIA did not address this hardship.
As the government points out, we lack jurisdiction to review the BIA’s discretionary determinations. See Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178-79 (3d Cir.2003). Therefore, it is imperative that a petitioner receive the benefit of counsel before the BIA because this is the only opportunity a petitioner has to present argument regarding the weighing of the equities. Our ability to review the BIA’s *155decision is very limited. The BIA did not refer to several of the positive aspects of Forteau’s life, and counsel may have been able to persuade the BIA. Accordingly, Forteau was prejudiced by the denial of his right to counsel. Therefore, we will grant Forteau’s petition for review, vacate the BIA’s order, and remand this case to the BIA. On remand, the BIA shall issue a briefing schedule and provide Forteau’s appointed counsel the opportunity to brief the merits of his case before issuing a decision.
. In 2000, Forteau was convicted of endangering the welfare of a child. In 2006, he was convicted of disorderly conduct for stalking.
. The complaint underlying Forteau's conviction for endangering tire welfare of a child stated that he had intercourse with a 16 year-old, but Forteau testified in front of the Immigration Judge that he had only fondled her breast. The BIA wrote:
We find that, even crediting the respondent's testimony with regard to his 2000 conviction [endangering the welfare of a child], the adverse equities warrant a discretionary denial of the respondent’s application because the negative equities in this case outweigh the individual or cumulative effects of the positive equities.... Taken together, we find that the negative equities in the case at bar outweigh the positive ones either individually or cumulatively and that the Immigration Judge should have denied the respondent's application.
App. 4.
. At oral argument the government informed us that this was due to a miscommunication.
. The approximately ten month time period between when counsel first entered his appearance and when counsel requested a briefing schedule does not alter this conclusion. It is not unreasonable that counsel would expect the BIA to set a briefing schedule in this case after remand, particularly because we appointed counsel. Furthermore, counsel requested a briefing schedule before the BIA issued its decision. We find the Attorney General's reliance on the BIA practice manual to be unpersuasive. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480040/ | OPINION OF THE COURT
PRATTER, District Judge.
Ryan Rohrbaugh was diagnosed with malignant melanoma while incarcerated at *166State Correctional Institution — Albion (“Albion”). He received a significant amount of medical treatment at Albion, but did not consult with an oncologist prior to his release from prison. After his release, Mr. Rohrbaugh filed a lawsuit in the Middle District of Pennsylvania, raising a multitude of federal and state claims against various defendants. Mr. Rohrbaugh’s claims included, inter alia, a claim against Dr. Mark Baker, a family practitioner and the medical director of Albion, for deliberate indifference to medical needs under 42 U.S.C. § 1983 and the Eighth Amendment, as well as a claim against Dr. Baker for medical malpractice under Pennsylvania state law.
Mr. Rohrbaugh subsequently passed away, and Ms. Jessica Hankey was substituted as a party. Ms. Hankey, individually and as the Administratrix of Mr. Rohr-baugh’s estate, now appeals from an Order and Judgment entered by the District Court granting summary judgment to Dr. Baker on the § 1983 claim and declining to exercise supplemental jurisdiction over the state medical malpractice claim. We will affirm the District Court’s judgment.1
I. Factual and Procedural Background
This case initially involved several additional parties and claims, but the issues on appeal are limited to the treatment that Mr. Rohrbaugh received at Albion by Dr. Baker.2 We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we set forth only those facts necessary to our analysis.
While incarcerated at Albion, Mr. Rohr-baugh underwent a shave biopsy of a lesion, or mole, on his back. This biopsy was performed on September 27, 2003, and a pathology report was generated on October 3, 2003. The report contained the following diagnosis: “Malignant Melanoma, with invasion of at least the reticular dermis (Clark’s level of at least IV), to a maximum Breslow thickness of at least 5mm, with extension to the base (deep margin) of the biopsy.” (App. at 51.) On October 7, 2003, this pathology report was given to Dr. Baker, who reviewed it. Dr. Baker then referred Mr. Rohrbaugh to a general surgeon, Dr. Alan Esper.
Dr. Esper saw Mr. Rohrbaugh at the prison’s general surgery clinic on October 15, 2003. At that time, Mr. Rohrbaugh told Dr. Esper that he had had the mole for two years and that it had gotten progressively larger. Later that same day, Dr. Esper wrote a letter to Dr. Baker, recommending that Mr. Rohrbaugh receive a wide excision of the lesion. Dr. Baker wrote an order for a wide excision,3 which Dr. Esper performed on November 4, 2003. A pathology report was generated two days later, which reflected that there was:
*1671) Superficial spreading [of] malignant melanoma, Clark’s level V, 6 mm thick with mild lymphohistoeytic inflammatory infiltrate ...
2) All surgical margins of excision negative for malignant neoplasm;
8) Cicatrix.
(Supp.App. at 20.) The pathology report was received by Dr. Baker on the following day, November 7, 2003, and Dr. Baker made a notation on the report that the findings were abnormal.
Dr. Esper followed up with Mr. Rohr-baugh on November 19, 2003, and recommended that he see an oncologist. Later that same day, Dr. Baker spoke to both Dr. Esper and Mr. Rohrbaugh about Dr. Esper’s recommendation that Mr. Rohr-baugh see an oncologist. However, Mr. Rohrbaugh told Dr. Baker that he was scheduled to be released from prison soon, and strongly preferred to delay further treatment until after his release. Dr. Baker confirmed that Mr. Rohrbaugh was scheduled to be released from prison in two to eight weeks, and likely with an actual release in less than four weeks. Under these circumstances, Dr. Baker decided to defer to Mr. Rohrbaugh’s expressed wishes, and he did not order an oncology consult for Mr. Rohrbaugh prior to release from prison. At this point in time, Dr. Baker did not know whether Mr. Rohrbaugh’s cancer had metasticized, and he knew that an oncology consultation was necessary to determine Mr. Rohrbaugh’s prognosis.
Dr. Baker again met with Mr. Rohr-baugh on December 5, 2003, and advised him to seek further medical treatment after his release, including an oncology consult. At that time, Dr. Baker gave Mr. Rohrbaugh a copy of his November 6 pathology report, a letter from Dr. Esper regarding the surgery, and a prescription for a possible follow-up metastatic workup.
Mr. Rohrbaugh was released from prison on December 22, 2003. He sought care for his melanoma approximately seven weeks after his release. Unfortunately, his cancer recurred and he was diagnosed with metastatic disease, from which he passed away on June 7, 2006.
In support of her Eighth Amendment arguments, Ms. Hankey presents the report of a family medicine expert, Dr. Casey Cochran, who opined that once Dr. Baker knew that Mr. Rohrbaugh’s melanoma was at least 5mm thick, Dr. Baker should have required a referral to a medical oncologist or a melanoma specialist “soon after the melanoma diagnosis in order to optimize the chances for appropriate therapy.” (App. at 58-59.) In addition, Ms. Hankey presents the report and testimony of a surgical oncology expert, Dr. Douglas Fraker, who opined that given the information available to Dr. Baker as of his November 19, 2003 evaluation of Mr. Rohrbaugh, the appropriate standard of care required an urgent re-excision with sentinel node biopsy and lymph node mapping. (App. at 60-61.) Ms. Hankey also emphasizes that Dr. Baker never asked Mr. Rohrbaugh to sign a DC-462 form, which is a form that the Pennsylvania Department of Corrections maintains so that medical providers can document occasions when inmates refuse medical treatment.
On July 8, 2009, the District Court granted that part of Dr. Baker’s motion for summary judgment regarding the federal civil rights claims, and denied that part of Dr. Baker’s motion regarding state and common law medical malpractice claims. On August 13, 2009, pursuant to an agreement of the parties, the Court issued an order declining to exercise supplemental jurisdiction, dismissed the remaining state and common law medical *168malpractice claims, and entered a final judgment.4 Ms. Hankey then filed this appeal regarding the entry of judgment in favor of Dr. Baker on the federal claims.
II. Standard of Review
Our standard of review over the District Court’s grant of summary judgment is plenary. See McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Summary judgment is proper “if there is no genuine issue as to any material fact and [the] movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is genuine if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the Appellant failed to “make a showing sufficient to establish the existence of an element essential” to her case, and for which she bears the burden of proof at trial, we must affirm the entry of summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the record in the light most favorable to the Appellant and draw all reasonable inferences in Appellant’s favor. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000). We may affirm the District Court on any basis that finds support in the record. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999).
III. Discussion
The Eighth Amendment, through its prohibition of cruel and unusual punishment, imposes a duty on prison officials to provide humane conditions of confinement, including adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A violation of the Amendment occurs when (1) a medical need is serious and (2) the acts or omissions by prison officials demonstrate “deliberate indifference” to the inmate’s health or safety. See id. at 104-06, 97 S.Ct. 285; Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987). Thus, there are both objective and subjective components to a deliberate indifference claim. Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir.2002).
Deliberate indifference may be manifested by “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05, 97 S.Ct. 285; see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999) (reiterating that deliberate indifference may be demonstrated by intentionally denying, delaying or preventing a prisoner from receiving needed or recommended medical treatment). Estelle instructs, however, that medical judgments by doctors or prison officials that later prove inappropriate or negligent are not alone sufficient to give rise to an Eighth Amendment claim. See Estelle, 429 U.S. at 104-07, 97 S.Ct. 285; Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (reiterating Estelle’s distinction between deliberate indifference to serious medical needs and “mere negligence”); Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir.1993) (acknowledging that a deliberate indifference claim requires that a prisoner demonstrate “more than negligence”). Instead, the deliberate indifference standard requires “obduracy and wantonness,” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 *169L.Ed.2d 251 (1986), which has been likened to conduct that includes recklessness or a conscious disregard of a substantial risk of serious harm. See Rouse, 182 F.3d at 197. Accordingly, when some medical care is administered by officials that arguably falls below the generally accepted standard of care, that medical care is often sufficient to rebut accusations of deliberate indifference and preclude a finding of an Eighth Amendment violation. See, e.g., Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990) (stating that prison officials and doctors will be given wide latitude to address the medical needs of inmates and that “it is well established that as long as a physician exercises professional judgment his behavior will not violate a prisoner’s constitutional rights”).
In Farmer v. Brennan, the Supreme Court explained that the term “deliberate indifference” lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” 511 U.S. at 836, 114 S.Ct. 1970. The Court instructed that:
A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
511 U.S. at 837, 114 S.Ct. 1970.
Here, we are concerned with whether Dr. Baker acted with deliberate indifference to Mr. Rohrbaugh’s health. The evidence reflects that Dr. Baker knew that Mr. Rohrbaugh needed to consult with an oncologist regarding the lesion on his back, and that the consultation should be done sooner rather than later. However, there is nothing to suggest that Dr. Baker thought that an oncology consultation was necessary prior to Mr. Rohrbaugh’s release from prison, especially in the face of Mr. Rohrbaugh’s expressed wish to wait until after he was released to receive follow-up care. As Dr. Baker testified at his deposition:
Q: Okay. Did you feel an oncology consult was necessary?
A: I felt an oncology consult was necessary at some point. But the key is the patient was adamant about getting out and wanting to follow up with his own doctors. And that’s his own choice.
(App. at 39.)5
Of course, Mr. Rohrbaugh’s expressed wish to delay further care cannot be divorced from Dr. Baker’s duty to evaluate Mr. Rohrbaugh’s condition and educate Mr. Rohrbaugh so that he can make informed decisions about his health. Although Estelle “affords considerable lati*170tude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients,” such diagnosis and treatment must be sufficiently informed so as not to suggest deliberate indifference on the part of Dr. Baker. See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979). Here, looking at the evidence in this ease as a whole, it is clear that the high bar for deliberate indifference has not been reached.
The evidence reflects that in a period of less than four months, Dr. Baker reviewed an initial pathology report of Mr. Rohr-baugh’s lesion; referred Mr. Rohrbaugh to a surgeon for further examination and treatment; ordered an excisional biopsy of Mr. Rohrbaugh’s mole; reviewed another pathology report of Mr. Rohrbaugh’s lesion; and followed-up with Mr. Rohrbaugh and the surgeon regarding Mr. Rohr-baugh’s future treatment, including the recommended oncology consult. When Mr. Rohrbaugh expressed his wish to delay further treatment until after his upcoming release from prison, Dr. Baker followed up with prison guards to confirm when Mr. Rohrbaugh was scheduled to be released, so that Mr. Rohrbaugh could seek an oncology consult in a timely manner after his release. Dr. Baker met with Mr. Rohrbaugh yet again, to discuss the follow-up care that Mr. Rohrbaugh should seek upon his release, including the oncology consult, and to give Mr. Rohrbaugh copies of documents that might be helpful for his follow-up care.6 Under these circumstances, the subjective component of the deliberate indifference test has not been met. There is nothing to suggest that Dr. Baker was reckless in his decision to allow Mr. Rohrbaugh to wait until his release before consulting with an oncologist, or that Dr. Baker consciously disregarded a substantial risk of serious harm to Mr. Rohrbaugh’s health. See Rouse, 182 F.3d at 197. A reasonable jury could not conclude, on the evidence presented, that Dr. Baker’s state of mind rose to the level of “obduracy and wantonness” necessary for an Eighth Amendment claim. Whitley, 475 U.S. at 319, 106 S.Ct. 1078.
Appellant chooses a handful of cases7 in which this Court has addressed the con*171tours of deliberate indifference claims and has held that under some circumstances, delaying treatment for non-medical reasons can form the basis for an Eighth Amendment claim, and a physician’s state of mind can be inferred by the actions of that physician. However, neither the fact patterns nor the discussion of the law in any of those cases suggests that the subjective standard for deliberate indifference is met in this case. Mr. Rohrbaugh’s claim amounts to a disagreement over whether he received the best, or the quickest, or the most appropriate care for his condition, and such a disagreement over medical treatment does not rise to the level of deliberate disagreement. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004). It may be that Appellant will pursue the state law cause of action against Dr. Baker, but such a claim sounds in medical malpractice and not in the Eighth Amendment.
IV. Conclusion
For the foregoing reasons, we will affirm the District Court’s Order.
. The District Court had jurisdiction pursuant to 42 U.S.C. § 1983, and this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
. Mr. Rohrbaugh was initially incarcerated at York County Prison, and after several months he was transferred to State Correctional Institution — Camp Hill. He was later transferred to Albion, where he remained until his release. Although Mr. Rohrbaugh alleged that he requested treatment for a lesion on his back at all three places of incarceration, the facts relevant to this appeal are limited to those that arose at Albion.
.At his deposition, Dr. Baker was questioned as to why he wrote the order for the wide excision, as opposed to Dr. Esper writing the order. Dr. Baker testified that the normal procedure was for Dr. Esper to make treatment recommendations and for Dr. Baker to review them. If Dr. Baker agreed with the recommendations, he would take the steps necessary to implement them.
. Ms. Hankey subsequently transferred the lawsuit, together with the record, to state court pursuant to 42 Pa.C.S.A § 5103(b).
. Later in the deposition, Dr. Baker clarified his use of the phrase "at some point”; however, the relevant deposition page was not included in the appendices on appeal. Dr. Baker's clarification, as reprinted in the District Court's opinion, is as follows:
Q: What do you mean when you use the phrase "at some point”?
A: Well, again, with the — with his diagnosis, I would think that sooner than later would be better, obviously. But since he was — the dates were coming up, he was insistent upon him leaving within four to six weeks, eight, that it should be done soon.
Q: Did you believe that the oncology conduct should be done sooner than four to six weeks?
A: No, that — that would be a reasonable amount of time to get someone in to an oncologist ... I would recommend within the 60-day time frame, yes.
Hankey v. York County Prison, No. 3:05-CV-0136, at 20-21 n. 8, 2009 WL 2043392 (M.D.Pa. Jul. 8, 2009).
. Appellant makes much of the fact that Mr. Rohrbaugh never signed a DC-462 form, and argues that because Dr. Baker never ordered an oncology consult, Mr. Rohrbaugh was never actually in a position to formally refuse the consult. This argument does not assist Appellant in making out a deliberate indifference claim. The evidence reflects that Mr. Rohr-baugh clearly expressed his wish to delay meeting with an oncologist until after his release from prison, and Dr. Baker honored that wish after confirming that Mr. Rohr-baugh would be free to consult an oncologist in just a few weeks. Whether Mr. Rohrbaugh’s wish should have been formalized in a DC-462 form — or whether Dr. Baker should have scheduled an oncology consult prior to Mr. Rohrbaugh’s release, despite Mr. Rohrbaugh's express wishes to the contrary — may reflect on the quality of Dr. Baker’s exercise of professional judgment and thus be relevant to a medical malpractice claim. However, these inquiries do not alter our resolution of the issues presented on appeal.
. Appellant relies most heavily on West v. Keve, 571 F.2d 158 (3d Cir.1978) and Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir.1979), which make clear that inadequate medical care, uninformed medical decisions, and failures to arrange consultations with a specialist may, in some circumstances, suggest deliberate indifference. See West, 571 F.2d at 162. However, the medical treatments provided to the patients in West and Pierce were markedly less adequate to address the medical conditions at issue in those cases, such that the evidence could support a finding of deliberate indifference on the part of the treating professionals. By contrast, here the evidence regarding the medical care given to Mr. Rohrbaugh, and the evidence regarding the state of mind of Dr. Baker, cannot support a deliberate indifference claim. The evidence here reflects that Dr. *171Baker did in fact exercise his professional medical judgment throughout Mr. Rohr-baugh's treatment, such that Mr. Rohrbaugh’s Eighth Amendment claim cannot stand. Whether Dr. Baker’s exercise of medical judgment met the requisite standard of care is, of course, a different question, and one integral to Mr. Rohrbaugh's state law medical malpractice claim.
Appellant also cites Durmer v. O’Carroll, in which this Court concluded that an inmate had a viable deliberate indifference claim against the prison physician where the inmate, who had suffered a stroke, had been denied physical therapy for 18 months while he was referred from one consultant to another. See 991 F.2d at 67-68. This case is distinguishable from Durmer, however, in that Dr. Baker knew that Mr. Rohrbaugh was scheduled to be released within just a few weeks — a period that Dr. Baker thought, in his professional judgment, was reasonable to delay in seeing an oncologist. The delay here was significantly shorter than the one in Durmer, and does not suggest a subjective "deliberate indifference" state of mind on the part of Dr. Baker. Moreover, here the delay was not actually occasioned by Dr. Baker, inasmuch as Dr. Baker was ready to arrange a consult with an oncologist at the time that Dr. Esper recommended it, and Mr. Rohr-baugh himself chose to defer the consultation. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480041/ | OPINION
PER CURIAM.
Oscar Lopez petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
I.
Lopez is a native and citizen of Guatemala. On October 3, 1998, Lopez was detained while attempting to enter the United States at San Ysidro,- California. At his interview with an immigration inspector the next day, Lopez was questioned as follows:
Q. When did you enter the United States?
A. Yesterday
Q. How did you attempt to enter the United States?
A. Walking through the line
Q. How did you present yourself for inspection?
A. Like all my friends, I said U.S.
Q. Are you a United States citizen?
A. No.
(A.R.158.) After admitting that he was not a United States citizen, Lopez claimed that he was instead a Mexican citizen. Based on this information, immigration authorities found that Lopez had made a false claim to United States citizenship, see 8 U.S.C. § 1182(a)(6)(C)(ii), and ordered him immediately removed to Mexico. The removal order indicated that Lopez was not permitted to return to the United States for at least five years. Despite this instruction, Lopez soon re-entered the country unlawfully.
In 2003, Lopez submitted an application to adjust his status on the ground that he was the beneficiary of an approved 1-130 petition filed by his father, who is a lawful permanent resident. See INA § 245(i) [8 U.S.C. § 1255(1) ]. The Department of Homeland Security (DHS) denied the application, finding that he was inadmissible for: (1) having made a false claim to United States citizenship; and (2) re-entering the country in violation of his removal order. DHS informed Lopez that he was required to leave the United States and that removal proceedings would be instituted against him if he failed to do so. Lopez did not depart.
Accordingly, in March 2006, DHS served Lopez with a Notice to Appear charging him with removability: (1) as an alien present in the United States without admission or parole under INA § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i) ]; (2) for having made a false claim of United States citizenship under INA § 212(a)(6)(C)(ii) [8 U.S.C. § 1182(a)(6)(C)(ii) ]; and (3) as an alien *191ordered removed who re-entered without admission under INA § 212(a)(9)(C)(i)(II) [8 U.S.C. § 1182(a)(9)(C)(i)(II) ]. In May 2007, Lopez appeared before an Immigration Judge (IJ) and, through counsel, admitted the first charge, but denied the second and third charges. Lopez also renewed his request for adjustment of status.
A removal hearing was scheduled for February 5, 2008. Before the hearing, on December 81, 2007, the government filed a number of documents with the immigration court, including a copy of Lopez’s October 4, 1998 interview with the immigration inspector at San Ysidro. In response, Lopez filed a motion for a continuance, claiming that, in light of the “new” evidence against him, he needed additional time to seek a waiver of inadmissibility. The IJ denied the motion and the hearing took place as scheduled on February 5, 2008.
At the hearing, Lopez denied having represented himself as a United States citizen when he attempted to enter the country in October 1998. Lopez testified that, when he arrived at the border, he chose to join a line of people who did not have to present any documents to the authorities in order to get through. He claimed that he did not speak English and did not understand what the immigration officer said to him before he was pulled from the line. Lopez claimed that he also failed to understand the inspector’s questions the following day, and did not mean to state that he had intentionally misrepresented himself as a United States citizen.
After the hearing, the IJ found that Lopez’s testimony was not credible and that he had falsely represented himself as a United States citizen in violation of INA § 237(a)(3)(D) [8 U.S.C. § 1227(a)(3)(D) ]. Therefore, the IJ denied his application for adjustment of status. See 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (barring admission of “any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act”). With respect to the motion for a continuance, the IJ explained that Lopez had plenty of time to prepare a defense to the government’s charge that he had made a false claim to United States citizenship, as that charge was initially lodged against him as early as 1998. The IJ further found that there were no waivers available to Lopez for this particular ground of inadmissibility. Upon review, the BIA affirmed the IJ’s decision. Lopez now petitions for review of the BIA’s order.
II.
A. Motion for a Continuance
Lopez first argues that the IJ abused his discretion, and violated Lopez’s due process rights, when he denied Lopez’s motion for a continuance. As noted above, Lopez argued in his motion that he needed additional time in order to file an application for a waiver of inadmissibility under INA § 212. Lopez claimed that he had not realized that it would be necessary to seek such relief until he reviewed the documents that the government had filed two weeks earlier in support of its case. Lopez also noted that “[t]he causal statement made by [him] at the time of entry should not be considered a ‘false claim to citizenship’ and that issue, if disputed, will require briefing.” (AR 000251.)
We review the denial of a motion for a continuance for an abuse of discretion, and will reverse the agency’s decision only if it is arbitrary, irrational, or contrary to law. See Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir.2006). Under the applicable regulations, an IJ has the discretion to grant a continuance if there is “good cause shown.” *1928 C.F.R. § 1003.29. We exercise plenary review over procedural due process claims. Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.2006).
Upon review of the record, we agree with the BIA that the IJ acted within his discretion in denying Lopez a continuance. As the BIA explained, the Notice to Appear issued in 2006 — as well as the denial of his first application to adjust his status in 2005 — clearly informed Lopez that he was being charged with removability for, inter alia, having made a false claim of United States citizenship under INA § 212(a)(6)(C)(ii) [8 U.S.C. § 1182(a)(6)(C)(ii) ]. We see no reason why Lopez should not have been able to prepare his defense in a timely manner.1 Furthermore, given that, as the IJ correctly noted, there were no waivers available to Lopez for this particular ground of inadmissibility, we fail to see how delaying the proceedings would have affected the outcome of his case.
We also reject Lopez’s due process argument, as we have carefully reviewed the record and conclude that he was provided with a full and fair hearing, and, as discussed above, a reasonable opportunity to present evidence. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.2006).
B. Application for Adjustment of Status
Lopez next argues that the IJ and BIA erred in finding that he was inadmissible under § 1182(a)(6)(C)(ii)(I) because, he contends, the record did not sufficiently demonstrate that he had falsely claimed to be a United States citizen when he attempted to enter the country in October 1998. According to Lopez, the only evidence suggesting that he purposefully misrepresented himself as a United States citizen is his ambiguous statement to the immigration inspector that he had “said U.S.” when asked how he “present[ed himself] for inspection.” Lopez now argues that this statement is subject to varying interpretations — “[i]t is just as likely that [he] ... meant that he had said ‘U.S.’ to the border control officer in as far as where he was going.” (Br.33-34.)
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). When, as in this case, the BIA substantially relies on the findings of the IJ, we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary review over Lopez’s challenge to the agency’s determination that he was statutory ineligible for adjustment of status. See Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005).
Upon review, we conclude that substantial evidence supports the BIA’s determination that Lopez made a false claim to citizenship. Although Lopez’s account of the alleged miscommunication is certainly plausible, he has not shown that any reasonable adjudicator would be compelled to *193reject the IJ’s adverse credibility determination. Accordingly, because substantial evidence supports the IJ’s determination that Lopez was inadmissible for permanent residence, the IJ and BIA correctly concluded that he was therefore ineligible for adjustment of status.
We have reviewed Lopez’s remaining arguments and conclude that they are without merit. Accordingly, we will deny the petition for review.
. In support of his argument that he needed additional time to prepare for the merits hearing, Lopez claims that he did not have a copy of his first application for adjustment of status or the exhibits pertaining to his 1998 expedited removal proceedings until the government submitted them to the immigration court on December 31, 2007. He does not, however, explain why the one-month period between the government’s submission and his removal hearing was insufficient. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480042/ | OPINION
PER CURIAM.
Shiqi Xue, a native and citizen of China, seeks review of a May 29, 2009 decision by the Board of Immigration Appeals (“BIA”), dismissing his appeal from the denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
I.
Xue arrived in the United States in 2006, without proper documentation. In May 2007, he filed an application for asylum, withholding of removal, and protection, under the CAT, in which he alleged that his wife had suffered a forced abortion and sterilization in China and that his business had been shut down by the Chinese family planning authorities as a result of their violation of China’s population control laws. At his merits hearing, Xue testified that he was married in 1996, and had his first child, a daughter, on January 9, 1997. (AR 173.) He testified that in March 1997, at the request of family planning officials, an IUD was implanted in his wife. (AR 174.) At some point in 2002, however, the IUD fell out and Xue’s wife became pregnant. (AR 175, 197.) Xue testified that when his wife was about five or six months pregnant, she traveled to her mother’s house for New Year’s Eve. The family planning officials in that village found out about the pregnancy and forced her to undergo an abortion. (AR 176-177.) Xue testified that he did not learn of the abortion until the following day because he had been at work at a construction site for the previous two days without access to a phone. Xue testified that when he found out he was very angry and went directly to the family planning office, but it *202was midnight and the doorman would not let him in. (AR 177.) He then went to his mother-in-law’s house, where his wife confirmed that she had been forced to terminate her pregnancy. (AR 178.)
About a month later, Xue’s wife was fitted with another IUD. (AR 178-79.) Xue testified that he wanted more children, so in February 2004, he hired a private doctor to remove the IUD. (AR 179.) In June 2004, Xue and his wife learned that she was pregnant again. (Id.) Xue told his wife to remain home from work and limit contact with outsiders to avoid detection. (Id.) In June 2004, Xue’s wife skipped her check-up appointment with the family planning authorities. (AR 225.) Xue testified that during the same month he went to a government agency to request a replacement marriage certificate. (AR 224.) Xue’s second child was born on February 15, 2005. According to Xue, the family planning officials found out about the birth, and on July 14, 2005, they came to his office looking to sterilize, arrest, and fine him. (AR 190.) Xue was not there at the time, but found out when a co-worker called him and told him that officials had come looking for him and had closed down his business. (AR 191.)
Xue testified that after this incident, he decided to escape. (AR 192.) He went to a friend’s house for four months, then to his wife’s sister’s house for two months, and then on April 16, 2006, he left China. (Id.) He now lives in New Jersey with his cousin and works for a construction company in New York City. Xue maintains that the family planning authorities were asking his co-workers questions about him and his whereabouts as recently as 20 days prior to his merits hearing. (AR 226-27.) He also testified that while he was still in hiding at his friend’s house in China, he talked to his wife and she told him that she had been forcibly sterilized. (AR 193.) Xue testified that he is afraid to return to China because he believes that he will be jailed and punished for violating the family planning policy. (AR 194.)
Applying REAL ID ACT standards, the IJ found that Xue’s testimony lacked credibility because it was unclear, inconsistent, and contained multiple discrepancies and omissions that went to the heart of his claims. The IJ further found that, even assuming his credibility, Xue had not carried his burden of demonstrating that he suffered past persecution or possessed a well-founded fear of future persecution. The IJ also found that Xue did not demonstrate eligibility for withholding of removal or CAT protection because those claims were based on the same testimony that the IJ had determined was not credible. Xue appealed. The BIA dismissed Xue’s appeal, holding that even if Xue had testified credibly, he had not established past persecution based on his wife’s forced abortion and sterilization, or a well-founded fear of future persecution on account of “other resistance” to the population control law. The BIA also concluded that the IJ’s credibility determination was not clearly erroneous. This petition for review followed.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a). When the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, “we have authority to review the decisions of both the IJ and BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See id. Because Xue filed his asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go the *203heart of his claim. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Rather, the REAL ID Act permits credibility determinations to be based on observations of Xue’s demeanor, the plausibility of his story, the consistency of his statements, or “any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). We must defer to and uphold the IJ’s adverse credibility determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (citations omitted).
III.
Xue protests that the IJ’s adverse credibility finding was neither specific nor cogent, and was based on factual determinations unsupported by the record. We have closely reviewed the record and conclude that substantial evidence supports the adverse credibility determination in this case. Both the BIA and IJ provided numerous reasons for concluding that Xue lacked credibility. First, the IJ noted that although Xue testified that he had been working at a construction company when his wife was taken to have the abortion, this employer is not listed anywhere on his 1-589 application. Xue’s explanation for this omission was that he did not think it was important, even though this job kept Xue from finding out about the abortion until the following day — a key aspect of his testimony concerning this incident. Second, the IJ found it inconsistent that Xue would have sought to replace his marriage certificate in June 2004, the same month that his wife purposely missed her gynecological exam, in light of his testimony that he had told his wife they needed to be careful and limit contact with outsiders while she was pregnant. When questioned about his motivation, Xue initially stated that he was not afraid to renew the certificate because his wife had not missed her checkup yet, but after he was shown his I-589 indicating that she missed her appointment in June 2004, Xue changed his testimony and stated that he was not concerned because the marriage certification and family planning offices were located in different parts of town. (AR 225.) The IJ was also troubled by Xue’s testimony that officials in China are still looking for him. Xue testified that twenty days or so before his hearing, his wife told him that his former co-workers were approached by plain clothes officers identifying themselves as family planning officials and looking for Xue to arrest him. However, this information came to light only through questioning at the end of the hearing, and was not provided in his 1-589 or in any other document. Xue testified that he did not think to amend his application, but as this testimony concerns the very reason that Xue is afraid to return to China, the IJ found it to be a last-minute attempt to buttress his claim. The record does not compel a contrary conclusion.
The BIA reviewed the IJ’s decision and concluded that the IJ was not unreasonable in finding that Xue’s testimony was generally convoluted and non-responsive. The BIA also noted Xue’s lack of evidence or affidavits corroborating key parts of his claim, such as the claim that he owned a business, or that family planning officials were still looking for him. In response, Xue attempts to demonstrate that his testimony was internally consistent, and that his explanations for failing to provide corroboration were reasonable. Although Xue may be able to rehabilitate his testimony in one or two respects,1 we find that *204the IJ’s adverse credibility determination 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) (citations omitted).
With respect to Xue’s claims under CAT, the BIA found that Xue had not claimed that he had been tortured in the past, and failed to establish that he more likely than not would suffer torture in the future. This assessment is also supported by substantial evidence. The IJ found that, for essentially the same reasons that he did not present credible evidence of past persecution, Xue did not present credible evidence that anyone in China would seek to torture him upon his return.
IV.
Accordingly, the petition for review will be denied.
. For example, we agree that Xue's testimony that he went to his mother-in-law's house on December 29th, not December 28th, was eventually clarified on cross-examination. However, the IJ's assessment that Xue's testimony about this incident was "not forthright *204or straightforward or candid” is also supported by the record. (AR 59.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480043/ | OPINION
PER CURIAM.
Petitioners Mohammad Shahid and Mohammad Bilal, father and son, and natives and citizens of Pakistan, illegally entered the United States in November of 2000. In December of 2000, the former Immigration and Naturalization Service issued each of them a Notice to Appear, charging that they were removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)®, 8 U.S.C. § 1182(a)(6)(A)®, as aliens who were present in the United States without having been admitted or paroled.
On April 20, 2001, Shahid married La-keysha Y. Thomas, a United States citizen. A.R. 439. On April 30, 2001, a day before the LIFE Act deadline, Thomas filed immediate relative visa petitions, Form I-130, see 8 U.S.C. § 1151(b)(2)(A)®, for Shahid as her spouse, and Bilal as her unmarried child. A.R. 437-38.1 On November 2, 2001, Thomas was notified of the approval of the visa petitions. See id. On April 22, 2002, the State of New Jersey granted Shahid a divorce from Thomas.
On April 25, 2002, three days after his divorce from Thomas, Shahid married Bal-bir Kaur, a lawful permanent resident of the United States. A.R. 50. Three months later, on July 25, 2002, Kaur filed two immediate relative visa petitions, A.R. 435-36 — one for Shahid as her spouse, and one for Bilal as her unmarried child, see 8 U.S.C. § 1153(a)(2)(A).
On April 12, 2006, Shahid submitted an application for asylum and withholding of removal, Form 1-589, claiming changed circumstances and a fear of returning to Pakistan. A.R. 271-79. About two weeks later, Shahid and Bilal appeared before the Immigration Judge. They conceded that they were removable as charged and proceeded solely on the basis of Shahid’s request for asylum. Shahid testified at his merits hearing and claimed to fear persecution in Pakistan from “Shia people” over religious differences. At the conclusion of Shahid’s testimony, the Immigration Judge denied his request for relief and protection, thereby also denying Bilal asylum as a derivative of Shahid’s application. *216Shahid and Bilal appealed the IJ’s decision to the Board of Immigration Appeals, which affirmed on October 9, 2007.
On November 16, 2007, Shahid and Bilal filed a motion to reopen with the Board, claiming that they had approved immediate relative visa petitions filed by Balbir Kaur, and the priority dates for them visas were current. They requested that the Board grant them adjustment of status. Attached to the motion to reopen were the following: the Approval Notice, Form I-797C, for Bilal relating to the visa petition filed by Ms. Kaur, A.R. 79, and a copy of the Department of State Visa Bulletin for October, 2007. On April 25, 2008, the Board denied the motion to reopen on procedural and substantive grounds. First, Shahid and Bilal had failed to file an application to adjust status, Form 1-485, along with their motion, as required by 8 C.F.R. § 1003.2(c)(1) (requiring that all applications for relief be appended to motions to reopen). Second, Shahid and Bilal failed to establish prima facie eligibility for adjustment of status, because, as aliens who had entered the United States without being admitted or paroled, they were ineligible to adjust their status under INA § 245(a), 8 U.S.C. § 1255(a), and they did not submit evidence that they qualified under INA § 245(i), 8 U.S.C. § 1255®, either.
On January 7, 2009, Shahid and Bilal, now represented by different counsel, filed a second motion to reopen with the Board. In it they claimed that they were the victims of ineffective assistance of counsel by their previous attorney, Dominick S. Cardinale, who assisted them in filing them first motion to reopen. Attached to the motion to reopen and offered in support of it were the following: a copy of the Receipt Notice from July 18, 2001 for Lakey-sha Thomas’s immediate relative visa petition for Shahid; a copy of the Approval Notice from November 2, 2001 for Ms. Thomas’s immediate relative visa petition for Bilal; copies of the Receipt Notices from July 25, 2002 for Balbir Kaur’s immediate relative visa petitions for Bilal and Shahid; a copy of the Approval Notice, Form I-797C, from April 20, 2005 for Ms. Kaur’s immediate relative visa petition for Bilal; various documents regarding attorney Cardinale; an affidavit from Shahid; Shahid’s application to adjust status, Form 1-485, with Supplement A relating to INA § 245®, 8 U.S.C. § 1255®; biographic information sheets, Form G-325 and G-325A, completed by Ms. Kaur and Shahid; Shahid and Ms. Kaur’s marriage certificate; photographs; documents regarding Shahid’s previous mamage to and divorce from Ms. Thomas; documents regarding both Ms. Kaur’s birth, and her marriage to and divorce from Harjit Singh; and documents regarding Shahid’s previous marriage to and divorce from Bilal’s biological mother in Pakistan. A.R. 22-66.
On July 17, 2009, the Board denied Sha-hid’s and Bilal’s second motion to reopen. The Board concluded that it was both untimely, as it was filed more than 90 days after the Board’s final decision, and number-barred. The Board noted that Shahid and Bilal claimed to have suffered ineffective assistance of counsel, but irrespective of that, the second motion to reopen did not include any evidence that the immediate relative visa petition filed by Ms. Kaur on behalf of Shahid had been approved. A Form I-797C had been submitted with the motion to reopen indicating that Ms. Kaur’s 1-130 petition had been approved for 13 year-old Bilal, but there was no proof submitted that her visa petition had been approved for the lead respondent, Shahid, based on their marriage. Moreover, the Board observed, as the motion itself admitted, there was little evidence submitted of the bona fides of Shahid’s marriage to Ms. Kaur. Accordingly, there *217was no showing that Shahid was prima facie eligible for discretionary relief in the form of adjustment of status.2 This timely petition for review followed.
We will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and (b)(1) to review a final order of removal. We review the denial of a motion to reopen for an abuse of discretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). The Supreme Court has stated that “[mjotions for reopening of immigration proceedings are disfavored,” noting that “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Id. We will not disturb the Board’s disere-tionai-y decision unless it was arbitrary, irrational or contrary to law. See, e.g., Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). The agency’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
“An alien may file one motion to reopen proceedings,” and such a motion “shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(A),(B). Ordinarily, “[t]he motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). Shahid and Bilal’s second motion to reopen was a year late. Because the second motion to reopen was untimely, and none of the exceptions apply,3 the Board did not abuse its discretion in denying it. Doherty, 502 U.S. at 323, 112 S.Ct. 719; Sevoian, 290 F.3d at 174.
In their brief, Shahid and Bilal claim that the Board erred because, but for the alleged ineffective assistance of their prior attorney in his filing of their first motion to reopen, they would have been able to demonstrate prima facie eligibility for adjustment of status. We have held that attorney conduct can provide a basis for equitable tolling of the ninety-day deadline, see Mahmood v. Gonzales, 427 F.3d 248, 250-53 (3d Cir.2005), but, regardless of Shahid’s and Bilal’s claim of ineffective assistance of counsel, their second motion to reopen also failed to provide the necessary evidence to demonstrate their prima facie eligibility for adjustment of status.4
To be eligible for a discretionary grant of adjustment of status, the applicant must be eligible to receive an immigrant visa, be admissible for permanent residency, and demonstrate that an immigrant visa is im*218mediately available to him when the application is filed. See INA § 245(a), 8 U.S.C. § 1255(a). Aliens, such as Shahid and Bilal, who are otherwise ineligible to adjust their status because of an illegal entry, may take advantage of INA § 245(i) if they are the beneficiaries of a visa petition filed prior to April 30, 2001, and the visa petition was approvable when filed. See 8 U.S.C. § 1255(i)(l)(B)(i). In addition, an alien like Shahid, who marries after removal proceedings have begun, is statutorily ineligible for adjustment of status unless he establishes that his marriage is bona fide. See 8 C.F.R. §§ 1245.1(c)(8), 1245.1(e)(8)(iii)(F); 8 U.S.C. § 1255(e)(1), (3).
Shahid and Bilal thus bore the burden of demonstrating a prima facie case that they were the beneficiaries of approved I-130 immediate relative petitions, with priority dates for currently available visas, that they were not ineligible to adjust status, and that Shahid’s marriage to Kaur was bona fide. See Sevoian, 290 F.3d at 175 (prima facie standard for motion to reopen requires applicant to produce objective evidence showing reasonable likelihood that he can establish he is entitled to relief). As the Board properly observed, Shahid and Bilal had evidentiary failures in their second motion to reopen in that they failed to demonstrate that Shahid was the beneficiary of an approved immediate relative visa petition. This failure alone supports the Board’s denial of the motion to reopen because the Board could not adjust Shahid’s status without evidence of an approved and immediately available visa. Shahid and Bilal concede this evidentiary failure in a footnote in their brief, stating, “Petitioner’s second motion to reopen ... erroneously stated that Petitioner is the beneficiary of an approved, 1-130 visa petition.... In actuality, Petitioner Mohammed Shahid (father) has only a pending 1-130 petition, while Petitioner Mohammed Bilal (son) is the beneficiary of an approved 1-130 visa petition.” See Petitioner’s Brief, at 11 n. 1.
Nevertheless, Shahid and Bilal argue that a pending immediate relative visa petition is sufficient under the reasoning of Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002). See Petitioner’s Brief, at 23-25. We do not agree. Matter of Velarde held that a motion to reopen seeking adjustment of status based on a marriage entered into after removal proceedings began may be granted notwithstanding the pendency of a visa petition filed on the alien’s behalf if certain conditions are met. One of those conditions is that the motion be timely filed. 23 I. & N. Dec. at 256. The Board did not address motions to reopen filed after the 90-day deadline has passed, and pointedly explained that motions submitted after the 90-day period “present additional considerations regarding the finality of proceedings.” Id. at 256-57. Shahid’s and Bilal’s second motion to reopen was not timely filed and thus Matter of Velarde does not apply. Accordingly, the Board’s denial of the second motion to reopen on the ground that Shahid and Bilal could not show prima facie eligibility for adjustment of status without evidence of an approved visa petition for Shahid was not an abuse of discretion.
Regarding the bona fides of Shahid’s marriage, materials which may demonstrate that a marriage is bona fide include: (1) documentation showing joint ownership of property; (2) a lease showing joint tenancy of a common residence; (3) evidence of commingling of financial resources; (4) birth certificates of children born to the petitioner and beneficiary; (5) affidavits of third parties having knowledge of the bona fides of the marital relationship; and (6) any other documentation which is relevant *219to establish that the marriage was not entered into in order to evade the immigration laws of the United States. 8 C.F.R. §§ 204.2(a)(l)(i)(B). As the Board noted, Shahid submitted little evidence with his second motion to reopen that his marriage to Kaur is bona fide, and certainly not clear and convincing evidence. What evidence he did submit did not fit into any of the suggested categories, and thus was insufficient. See Malhi v. Immigration & Naturalization Serv., 336 F.3d 989, 994 (9th Cir.2003). Given this failure, the Board acted within its discretion in denying the second motion to reopen.
For the foregoing reasons, we will deny the petition for review.
. On December 21, 2000, Congress enacted the Legal Immigration Family Equity (“LIFE”) Act Amendments, which amended a prior law benefitting certain individuals who were otherwise ineligible to adjust their status in the United States because they were present without having been admitted or paroled. It replaced the original cut-off date with the new date of April 30, 2001. See generally Khan v. Att’y Gen. of U.S., 448 F.3d 226, 229 (3d Cir.2006). The LIFE Act amendments provided, in pertinent part, that a beneficiary of a petition for an immigrant visa filed on or before April 30, 2001, who was physically present in the United States on the date of enactment and paid the $1,000 fee, could adjust status under INA section 245(i). See INA § 245(i)(l)(B), 8 U.S.C. § 1255(i)(l)(B).
.We note that the immediate relative visa petitions filed by Ms. Kaur for Shahid as her spouse and Bilal as her unmarried child, A.R. 435-36, were not filed by the LIFE Act's April 30, 2001 deadline. The Board, however, did not base its “no prima facie eligibility" determination under INA § 245(i), 8 U.S.C. § 1255(1), on this fact. Our disposition of the petition for review does not require us to reach the issue whether Shahid and Bilal were “grandfathered in" with respect to their eligibility under INA § 245(i) by the immediate relative visa petitions filed by Ms. Thomas by the deadline.
. There are exceptions to the ninety day deadline which are not applicable here. 8 C.F.R. § 1003.2(c)(3).
. Bilal did not advance a claim to the Board, nor do Shahid and Bilal argue in their brief, that Bilal is independently eligible for adjustment of status on the basis of the approved petition filed by Ms. Kaur, who is not his biological mother. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480044/ | OPINION
PER CURIAM.
Ismet Calikiran petitions for review of a decision by the Board of Immigration Appeals (“BIA”) rendered on May 11, 2009. For the following reasons, we will dismiss in part and deny in part the petition for review.
*220I. Background
Calikiran is a native and citizen of Turkey. He arrived in this country in July 1989 and overstayed his visa; he has been in removal proceedings since September 1996. On May 14, 1997, Calikiran did not appear at a scheduled hearing and the Immigration Judge (“IJ”) issued an in ab-sentia removal order.
More than six years later, in June 2003, Calikiran filed a first motion to reopen his case, in order to seek adjustment of status. The IJ concluded that Calikiran’s motion was untimely and he failed to demonstrate exceptional circumstances permitting an untimely motion. Specifically, although Calikiran claimed he missed the 1997 hearing for medical reasons, he provided insufficient evidence of his medical condition and failed to explain the nearly six years of delay in filing his motion to reopen. The IJ therefore denied the motion to reopen. On appeal to the BIA, in May 2004, the BIA summarily affirmed and adopted the IJ’s decision to deny reopening. Calikiran did not file a petition for review with this Court, but did file a motion for reconsideration with the BIA. Due to error on the part of the BIA, the motion to reconsider was not docketed and the BIA did not address it for approximately five years.
In the interim, in October 2006, Caliki-ran filed a second motion to reopen, asserting that the IJ and BIA applied the wrong standard in denying his first motion to reopen. The BIA denied the second motion to reopen, concluding it was numerically barred and lacked merit. Calikiran filed a petition for review. We disagreed with the BIA’s conclusion that the second motion to reopen was numerically barred, but held it was untimely. We therefore denied the petition for review. See Calikiran v. Att’y Gen., 276 Fed.Appx. 240 (3d Cir.2008).
On May 11, 2009, the BIA issued a decision addressing Calikiran’s 2004 motion to reconsider. In addition, because Calikiran had submitted a letter and several documents in the intervening time, the BIA treated Calikiran’s submissions as a third motion to reopen. The BIA denied both motions.
This timely petition for review followed.
II. Analysis
A.
In his opening brief, Calikiran claims the IJ issued the in absentia removal order in violation of Calikiran’s Due Process rights.1 The order currently before us in this petition for review is the BIA’s May 11, 2009 order denying the 2004 motion to reconsider and the third motion to reopen. Because it is not properly before us, we lack jurisdiction to review the IJ’s underlying in absentia removal order. See Nocon v. INS, 789 F.2d 1028, 1032-33 (3d Cir.1986). Moreover, Calikiran did not present his Due Process claim to the BIA. Because he did not administratively exhaust it, we lack jurisdiction to review the claim for this reason as well. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1) ]; Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003); see also Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.2005) (a claim that the IJ failed in the duty to fully develop a case must be argued to the BIA).
Calikiran attempts to circumvent our lack of jurisdiction to review the IJ’s in absentia removal order by arguing that, because “[t]he initial ruling in this case by the IJ is flawed ... all rulings thereafter *221must be declared void as a result.” (Petitioner’s Brief at 9.) We reject this unsupported contention. Our case law is clear that, in this case, the BIA’s May 11, 2009 decision does not automatically bring up for review the IJ’s underlying removal order. Accordingly, to the extent Calikiran challenges the IJ’s in absentia removal order, we will dismiss his claims for lack of jurisdiction.
B.
The BIA’s May 11, 2009 decision denied reconsideration and reopening. We review the denial of motions to reconsider and to reopen under an abuse of discretion standard. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). We will not disturb the BIA’s decisions unless they were “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
Calikiran moved for reconsideration on the ground that the BIA and IJ wrongly determined his first motion to reopen was barred. In support, Calikiran argued that his motion was not subject to time and numerical limitations. He relied upon In re Cruz-Garcia, 22 I. & N. Dec. 1155 (BIA 1999), and In re Mancera-Monroy, 22 I. & N. Dec. 79 (BIA 1998), in which the BIA recognized that former INA § 242(b) [8 U.S.C. § 1252(b) ] did not provide express time and numerical limitations on the ability to challenge an in absentia removal order. In denying the motion to reconsider, the BIA rejected Calikiran’s contention and concluded that Calikiran’s case was not subject to former INA § 242(b) [8 U.S.C. § 1252(b) ].2 Accordingly, Caliki-ran’s motion for reconsideration failed to demonstrate that the decision to deny reopening suffered from a material error of fact or law. See 8 C.F.R. § 1003.2(b)(1).
Next, the BIA construed Calikiran’s documentary submissions as a third motion to reopen. Because the submissions included information about a disciplinary complaint Calikiran filed against his former counsel, the BIA considered whether Calikiran was entitled to equitable tolling of the period for pursuing reopening based upon the deficient performance of counsel. The BIA determined that equitable tolling did not apply because the facts did not support a claim of deficient performance of counsel. It therefore denied the third motion to reopen.3
Calikiran has not presented a challenge to any factual findings or legal conclusions that the BIA reached in its decision. To the extent Calikiran’s petition for review has raised any challenge to that order at all, we have reviewed the BIA’s decision and conclude that the BIA did not abuse its discretion in denying Calikiran relief.
III. Conclusion
For the foregoing reasons, we will dismiss in part and deny in part the petition for review.
. Calikiran claims he was ill at the time of his scheduled hearing and wanted it rescheduled. He alleges he mailed medical records to confirm his illness, but contends the IJ failed to adequately consider them prior to entering the removal order.
. As the BIA noted in Cruz-Garcia, ”[d]eportation proceedings involving notices of hearing issued between June 13, 1992, and March 31, 1997, were governed by section 242B of the Act,” not INA § 242(b). Cruz-Garcia, 22 I. & N. Dec. at 1160 n. 1. Because Calikiran’s case involved a notice of hearing issued in March 1997, the BIA determined he is subject to the constraints set forth in INA § 242B [8 U.S.C. § 1252b].
. The BIA concluded that Calikiran did not retain his former counsel until after expiration of the period for reopening the in absen-tia removal order, and former counsel timely filed the 2004 motion to reconsider (although, as the BIA noted, the BIA did not timely docket or address it). The BIA also concluded that Calikiran failed to exercise due diligence in pursuing his claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480045/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charlene E. Tyler appeals the district court’s judgment in Palmetto GBA’s favor on Tyler’s claim for severance pay, brought pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C.A. §§ 1001 to 1461 (West 2008 & Supp.2009). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Tyler v. Palmetto GBA, No. 3:09-cv-*25901119-CMC, 2009 WL 3698124 (D.S.C. filed Nov. 2, 2009, entered Nov. 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480047/ | HAYNES, Circuit Judge: *
Taxpayer Bruecher Foundation Services, Inc. (“BFS”), appeals from the district court’s judgment in favor of the United States following a bench trial on BFS’s tax liability. We find no error in the district court’s conclusions of law and thus AFFIRM.
I. Facts & Procedural History
This appeal arises out of a dispute between the United States and BFS over whether the workers whom BFS used in its foundation repair, grading, and land*383scaping services in 1999 and 2000 were independent contractors or employees of BFS.
Bruecher Foundation Services, Inc., is a corporation wholly owned by its president, William Howie Bruecher. BFS’s business consists primarily of residential foundation repair and grading projects. In its tax filings, BFS recognizes two employees: Mr. Bruecher and a secretary. In those filings, BFS treats the workers who perform the manual labor involved in the foundation repair as independent contractors.
In 2002, the Internal Revenue Service (“IRS”) conducted a general audit of BFS. The audit identified a discrepancy in BFS’s filings for the tax years ending March 31, 2000 and March 31, 1999: BFS had claimed substantial deductions for “contract labor” on its Form 1120 income tax returns but had not filed any corresponding Form 1099s evidencing payments made to particular contractors. The IRS auditor referred the matter to the employment tax group, which commenced an employment tax audit of BFS.
The IRS did not notify BFS that it was conducting an employment tax audit. The IRS did not provide BFS with notice of the statutory worker classification safe harbor as it was required to do by law. See Small Business Job Protection Act of 1996, Pub.L. No. 104-188, § 1122(a), 110 Stat. 1755, 1766 (amending Revenue Act of 1978, § 530, Pub.L. No. 95-600, 92 Stat. 2763, 2885-86). Nevertheless, the IRS issued its Form 4666 Summary of Employment Tax Audit to BFS on July 2, 2003, identifying sixteen workers for tax year 2000 and thirteen workers for tax year 1999 whom the IRS had concluded through its audit were employees of BFS that BFS had improperly classified as independent contractors. The audit summary also apprised BFS of the IRS’s conclusion that BFS was not entitled to the statutory safe harbor provided by section 530 of the Revenue Act of 1978, as amended, because BFS had failed to file Form 1099s for the workers at issue.
The principal consequence of the reclassification of these workers was to create, in the IRS’s determination, an obligation on BFS’s part to have paid taxes on the workers’ wages under the Federal Unemployment Tax Act (“FUTA”), 26 U.S.C. §§ 3301-3311, and the Federal Insurance Contributions Act (“FICA”), 26 U.S.C. §§ 3101-3128; see 26 U.S.C. §§ 3301 (imposing FUTA tax), § 3111 (imposing FICA tax); to have withheld and remitted, or have paid, the workers’ FICA taxes, see 26 U.S.C. § 3102; and to have withheld and remitted specified amounts of the workers’ anticipated federal income taxes, see 26 U.S.C. § 3402. Specifically, the IRS calculated, following the employment tax audit, that BFS owed $7,524.73 in FUTA taxes and $38,403.50 in FICA taxes and employee withholding for tax years 1999 and 2000.1 Collectively, we refer to these obligations as BFS’s “employment taxes.”
The Form 4666 audit summary notified BFS of the IRS’s calculation of these amounts due and offered BFS the opportunity to agree to the imposition of the tax liability as calculated by the IRS. BFS did not agree to the assessment.
In December of 2004, the IRS Appeals Office issued a Notice of Determination to BFS reiterating the audit’s findings and apprising BFS of its right to appeal the worker classification determination to the United States Tax Court within 90 days pursuant to 26 U.S.C. § 7436. BFS did not appeal.
*384On June 6, 2005, the IRS formally assessed additional employment taxes, penalties, and interest against BFS for tax years 1999 and 2000. On July 1, 2005, BFS paid the taxes and withholding due for fiscal years 1999 and 2000 for two employees — totaling $1,385.74 — under the divisible tax rule.2 On the same day, BFS submitted an administrative claim to the IRS for refund of taxes paid and abatement of taxes assessed. In its administrative claims, BFS argued that it was entitled to refunds and abatements of the employment taxes in dispute solely on the grounds that the workers at issue were independent contractors and not employees. The IRS rejected BFS’s claims on the erroneous grounds that BFS had agreed to the assessment at the conclusion of the audit. BFS filed an “appeal” of this denial with the IRS on October 8, 2005; the appeal did not take issue with the IRS’s incorrect statement that BFS had agreed to the assessment and again argued only that the workers at issue were independent contractors. The IRS issued a tax lien against BFS on December 13, 2005, and executed a levy against BFS’s bank account on March 23, 2006.
On May 17, 2006, BFS filed Form 1099s for each of the workers in dispute for calendar years 1999 and 2000. Two days later, BFS filed this lawsuit in the United States District Court for the Western District of Texas. BFS sought a refund of the taxes it had already paid and an order abating any outstanding employment tax assessments for tax years 1999 and 2000.
After the United States answered the complaint, BFS moved for partial summary judgment on the grounds that it had complied with all aspects of the safe harbor provided by section 530 of the Revenue Act of 1978, as amended. The district court denied the motion. Thereafter, the United States counterclaimed for payment of taxes due and all statutory additions and moved for summary judgment. The district court did not rule on the United States’ motion for summary judgment and held a bench trial on December 17 and 18, 2007. In February of 2009, the district court announced findings of fact and conclusions of law in favor of the United States on both the claim and counterclaim, ultimately concluding that the workers in dispute were BFS’s employees. Judgment was entered on March 17, 2009, and amended, on the United States’ motion, to reflect certain statutory additions to the judgment amount on April 3, 2009.
BFS timely appealed to this Court on April 15, 2009.
II. Standard of Review
Our “standard of review for bench trials is well established: findings of fact are reviewed for clear error; legal issues, de novo.” Seal v. Knorpp, 957 F.2d 1230, 1234 (5th Cir.1992). The district court’s interpretation of section 530 is a question *385of law. See Woodfield v. Bowman, 193 F.3d 354, 358 (5th Cir.1999) (“Questions of law such as the interpretation of a statute ... are subject to de novo review.”). We have held that the district court’s “determination of employee status is a finding of law subject to de novo consideration by” the court of appeals. Breaux & Daigle, Inc. v. United States, 900 F.2d 49, 51 (5th Cir.1990). However, the trial court’s underlying factual determinations and inferences drawn from those determinations are reviewed only for clear error. Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1044-45 (5th Cir.1987).
III. Discussion
BFS challenges on appeal the district court’s rulings on three serial issues related to its employment tax liability. First, BFS contends that the district court erred in concluding that BFS was not entitled to rely on the safe harbor provided by section 530 of the Revenue Act of 1978, as amended, to avoid liability for any misclassification of its employees. Second, BFS argues that, if it is not entitled to the section 530 safe harbor, then the district court should have assigned the burden of proof at trial to the United States because the IRS failed to comply with the advance-notice procedures of section 530. Third, failing other grounds for reversal, BFS disputes the district court’s ultimate conclusion that BFS’s workers were its employees and not independent contractors.
We find no reversible error in the district court’s resolution of each of these three issues.
A. The Section 530 Safe Harbor
The section 530 safe harbor provides employers with protection from employment tax assessments resulting from the good-faith miselassification of employees as independent contractors provided that employers meet certain requirements, including the filing of all required tax and information returns with the IRS. The United States argues that BFS cannot avail itself of the safe harbor because it did not file its Form 1099 returns for the workers in dispute here until two days before filing this refund action in federal district court — after the IRS had assessed the tax, denied BFS’s administrative claims for refund and abatement, and begun collection enforcement. BFS argues that the statutory language imposes no time deadline by which to file the returns and that any IRS interpretation to the contrary does not deserve the court’s deference.
The safe harbor provision at issue, codified as a note to 26 U.S.C. § 3401, was originally enacted as section 530 of the Revenue Act of 1978, and has been amended on several occasions thereafter.3 Notwithstanding these amendments, it remains referred to as “section 530” following the numbering of the original enacting law. Section 530 provides that, for purposes of employment taxes, if a taxpayer characterizes a worker as an independent contractor, then the IRS may not reclassify that individual as an employee if the *386taxpayer: (1) “did not treat [that] individual as an employee for any period” on the taxpayer’s tax or information returns; (2) filed “all Federal tax returns (including information returns) required to be filed by the taxpayer with respect to such individual for such period ... on a basis consistent with the taxpayer’s treatment of such individual as not being an employee”; and (8) had a “reasonable basis for not treating such individual as an employee.” § 530(a)(1). The dispute between the parties here focuses exclusively on the second element: whether BFS filed “all Federal tax returns (including information returns) required to be filed by the taxpayer with respect to” the disputed workers. The United States argues that BFS’s late and strategic filing of its Form 1099s for the disputed workers cannot satisfy this requirement; BFS argues that there is no time limit on when it could file the forms and become eligible for section 530 protection.
As an initial matter, BFS does not dispute that, if the workers were independent contractors, it was required to file Form 1099-MISC for each worker to whom it paid more than $600 in a calendar year by February 28 of the following year absent an extension. See 26 U.S.C. § 6041(a) (requiring filing of information return); Treas. Reg. § 1.6041-6 (as amended in 2000) (setting filing deadline); 26 U.S.C. § 6081(a) (authorizing extensions). BFS thus concedes that it should have filed Form 1099s for these workers and that the Form 1099 filings it did make were more than five years late.
The United States would have us resolve this case by reference to the IRS’s administrative practice in this area, see Rev. Rul. 81-224, 1981-2 C.B. 197; Rev. Proc. 85-18, 1985-1 C.B. 518, and the legislative history of the various enactments that together comprise section 530, see, e.g., S.Rep. No. 95-1263, 1978 U.S.C.C.A.N. 6761, reprinted in 1978-3 C.B. 321, 1978 IRB LEXIS 2279, at *436. At the outer boundaries of its argument, the United States would have us hold that a taxpayer’s untimely filing of relevant informational returns always deprives that taxpayer of section 530 relief, no matter how minimal the lateness of the filing. By contrast, BFS argues that these administrative precedents are not entitled to deference and points us to other aspects of the legislative history and what it terms the plain language of the statute. BFS would have us hold that a taxpayer’s untimely filing of the required returns never deprives the taxpayer of section 530 relief, so long as the returns are, at some point, filed. Both parties thus ultimately ask us to address the fundamental question of whether or not the section 530 safe harbor implicitly requires that Form 1099s be timely filed. The facts of this case, however, are not close. This is not a scenario in which a taxpayer arrived at 5:01 p.m. to find the office closed on the day the forms were due. Thus, we need not decide what would happen in such a case.
The timing issue here instead boils down to something much simpler — can BFS wait to file until after the challenged assessment is made and still make use of the “safe harbor?” Once viewed in this light, the answer is clear. We conclude that BFS cannot successfully raise the section 530 safe harbor in this action because BFS filed its Form 1099s after the IRS assessed the taxes in dispute here against BFS at the conclusion of the administrative process.
In Mallette Brothers Construction Co. v. United States, 695 F.2d 145, 155 (5th Cir.1983), we explained that sovereign immunity applies with equal force to tax refund suits; and that, while the United States has consented to be sued in this context, it *387has expressly conditioned its consent on the taxpayer’s prior presentation of the claim for refund to the IRS for review. See also 26 U.S.C. § 7422(a) (requiring administrative exhaustion before suit). BFS obviously did not raise its claim of entitlement to the section 530 safe harbor during the administrative process that preceded the assessment of the taxes because, not having filed the requisite Form 1099s, it was plainly not entitled to that safe harbor at that time.
Normally, this failure to exhaust would present a jurisdictional bar. Mallette Bros., 695 F.2d at 155-56; § 7422(a). However, where the United States raises a counterclaim for taxes due on exactly the same facts, federal jurisdiction over the taxpayer’s claim pragmatically continues; the counterclaim presents no more than the inverse of the original claim, and a ruling on one implicitly resolves the other. Gustin v. United States, 876 F.2d 485, 489-90 (5th Cir.1989) (citing 28 U.S.C. § 1340 and 26 U.S.C. § 7402(a)). That jurisdiction exists, however, does not mean that BFS is permitted to raise for the first time in federal court a defense to taxation to which it was admittedly not entitled when the IRS assessed the taxes in dispute here.
The “assessment of tax” is the IRS’s final determination of a deficiency at the end of its administrative process, see generally 26 U.S.C. § 6201 (authorizing and defining assessment of tax), and that action carries certain important consequences. One such consequence is that, in any subsequent proceeding, “whether ... in Tax Court for redetermination of a deficiency or in district court upon a refund claim or a government counterclaim,” the assessment is presumed correct, and the burden rests with “the taxpayer ... to prove by a preponderance of the evidence that the Commissioner’s determination was erroneous.” Carson v. United States, 560 F.2d 693, 695-96 (5th Cir.1977). The taxpayer does not satisfy this burden by proving that the IRS made a mistake in assessing the tax. Rather, “the taxpayer has the burden of showing that the assessment is wrong on any proper theory.” Bernstein v. Comm’r, 267 F.2d 879, 881 (5th Cir.1959). We must therefore uphold the assessment here unless BFS can show that the deficiency — however arrived at— is wholly unsupportable. See id. (“It is immaterial whether the [IRS] proceeded upon a wrong theory in determining the deficiency----”); Carson, 560 F.2d at 699 (“It is not enough ... for the taxpayer to make an argument embarrassing to the IRS.”). If there is, however, any legal basis for the assessment, even if it was not the one actually relied upon by the IRS, then the federal courts must enforce it.4
Here, BFS cannot meet its threshold burden of showing that the assessment was erroneous under section 530.5 BFS concedes that it was not entitled to the protection of the section 530 safe harbor until it filed the relevant Form 1099s. At the time the tax was assessed, it had not done so. The assessment was therefore correct when made, and BFS cannot now complain in federal court of an “error” that the IRS did not make.
Thus, while we decline to address the question of whether section 530 requires the timely filing of the relevant Form 1099s to obtain the benefit of the safe *388harbor, we hold that the practical effect of waiting until after the conclusion of the IRS’s administrative process and the concomitant assessment of the tax is to preclude BFS from successfully raising section 530 as a defense in this subsequent judicial proceeding.
B. Burden of Proof
BFS argued before the district court and argues on appeal that the IRS’s admitted failure to comply with the section 530(e)(1) notice procedures reverses the usual burden of proof to put the burden on the United States. BFS conceded at oral argument that there is no authority for this proposition in the statute or in the case law and asks us to create this remedy wholesale. We decline to do so. Cf., e.g., United States v. James Daniel Good Real Prop., 510 U.S. 43, 63, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (“We have long recognized that ‘many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them ... do not limit their power or render its exercise in disregard of the requisitions ineffectual.’ ... [I]f a statute does not specify a consequence for [the government’s] noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.” (quoting French v. Edwards, 80 U.S. (13 Wall.) 506, 511, 20 L.Ed. 702 (1871))); Brock v. Pierce County, 476 U.S. 253, 260, 265-66, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986) (declining to impose a consequence for the Secretary of Labor’s failure to comply with a statutory deadline absent express Congressional specification of a remedy).
We do not mean to suggest that there can never be a remedy for the IRS’s failure to comply with section 530(e)(1). The resolution might, for example, be different if BFS asserted a violation of its due process rights stemming from the failure to provide notice. See, e.g., Nu-Look Design, Inc. v. Comm’r, 356 F.3d 290, 294 n. 1 (3d Cir.2004) (rejecting due process claim on the grounds that constitutionally-sufficient notice was eventually given by the Notice of Determination). But that is not the case here; as in Nu-Look Design, BFS was apprised of the IRS’s determination as to the non-applicability of the section 530 safe harbor at the conclusion of the audit, allowing BFS ample opportunity for administrative relief on those grounds.
In summary, the district court was correct in finding no basis for reversing of the burden of proof as a remedy for the IRS’s failure to provide the section 530(e)(1) notice.
C. Classification of BFS’s Workers
The final issue presented by BFS’s appeal is the ultimate question of whether BFS’s workers were its employees for purposes of federal tax law. As the IRS is precluded by section 530(b) from issuing regulatory guidance on this point, the court’s guidance on this question of law derives from federal decisional law. Applying the district court’s findings of fact to the legal standards articulated by our precedent, we agree with the district court that the workers in dispute here were BFS’s employees. We note here that this opinion addresses only the particular and perhaps peculiar facts of this case. We do not opine whether all construction workers are employees or independent contractors. We do not see this case presenting the nationwide, far-reaching implications threatened by Bruecher. If the facts were different, the result might be different — no more and no less.
In Breaux & Daigle, Inc. v. United States, we explained that the Supreme Court in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947)
*389identified several factors we should consider in determining whether a worker is an employee or an independent contractor for [employment] tax purposes: degree of control, opportunities for profit or loss, investment in facilities, permanency of relation, and skill required in the claimed independent operation. No one factor is controlling nor is the list exclusive. See also Restatement (Second) of Agency § 220; Usery v. Pilgrim Equip. Co., 527 F.2d 1308 (5th Cir.1976) (same factors used to determine employee status for purposes of the Fair Labor Standards Act). Although the determination of employee status is to be made by common law concepts, a realistic interpretation of the term “employee” should be adopted, and doubtful questions should be resolved in favor of employment in order to accomplish the remedial purposes of the legislation involved. Tex. Carbonate Co. v. Phinney, 307 F.2d 289, 292 (5th Cir.1962).
900 F.2d 49, 51-52 (5th Cir.1990) (footnote omitted). The court has also considered “critically significant ... whether the individual [worker] ... is in business for himself.” Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1327-28 (5th Cir.1985) (quotations and footnote omitted).
The standard of review of the district court’s assessment of these factors is in part de novo and in part for clear error only. Breaux & Daigle, 900 F.2d at 51. We explained in Brock v. Mr. W. Fireworks, Inc. that
[t]here are thus three types of findings involved in determining whether [a worker] is an employee.... First, there are historical findings of fact that underlie a finding as to one of the five Silk factors; for example, whether [the purported employer] controlled the number of hours that an operator must be at a stand. It is beyond cavil, and neither of the parties dispute, that these findings of historical fact are subject to the clearly erroneous rule of Federal Rule of Civil Procedure 52(a).
Second, there are those findings as to the Silk factors themselves.... Findings as to control, investment, skill and initiative, opportunity for profit and loss, and permanency are plainly and simply based on inferences from facts and thus are questions of fact that we may set aside only if clearly erroneous....
The district court’s analysis, of course, is subject to plenary review by this court, to ensure that the district court’s understanding of the law is proper.
Finally, the district court must reach an ultimate conclusion that the workers at issue are “employees” or “independent contractors.” ... The ultimate finding as to employee status is not simply a factual inference drawn from historical facts, but more accurately is a legal conclusion based on factual inferences drawn from historical facts. We thus have held repeatedly that the ultimate determination of employee status is a finding of law subject to de novo consideration by this court.
814 F.2d 1042, 1044-45 (5th Cir.1987) (citations omitted).
We thus review the district court’s findings on each factor for clear error only but its conclusion from those findings de novo. The district court’s findings as to each of the factors are well supported by the factual record and we cannot conclude that they are in any respect clearly erroneous. We therefore recite here the relevant findings of fact made by the district court as to each factor we must consider, but offer our own de novo analysis as to the final weighing of those factors. In so doing, we emphasize the heavily fact-dependent nature *390of this inquiry. The net outcome of the weighing of the factors that our precedent directs us to consider here depends on the precise combination of all the facts presented by this case. No single one of the facts we set out here — nor, indeed, even any subset of these facts — should be seen as determinative.
1.Degree of Control
As to the degree of control exercised by BFS over the workers, the district court found that BFS’s
[w]orkers did not always come to work in the morningf,] and they did not always call Brueeher to alert him to their absence. Workers worked for varying periods of time, and no evidence shows [BFS] ever penalized workers for not showing up in the morning, or for leaving for periods of time.... While the workers were on a job site, they were free to determine when to take breaks or when to eat lunch. For most of the day, Brueeher did not supervise workers’ activities, and workers were able to follow their own pattern of work throughout the day.
However, BFS also
had the right to instruct workers when, where, and how to work, and to some extent mandated the sequence of work. Specifically, Brueeher told the workers when to work at certain job sites, showed workers where the jobs were located, flagged the jobs, left the workers to progress at the job, and returned for the final leveling. Although Bruecher was not physically presented during most of the work day, ... he stopped by occasionally. If workers left a job site in disarray, Brueeher instructed them to stay or return to clean it and often paid workers for that time. [BFS] assigned additional projects to workers when one job ended and another began.... Brueeher ... could discharge a worker for not performing his work properly.
In summary, the district court found that BFS “retained a significant level of control over its workers’ schedules and ability to perform foundation-repair jobs, and where it did not exercise such control, it retained the right to do so.”
2. Opportunities for Profit or Loss
The district court found that BFS “paid workers by the hour at the end of the week, even if the job was not completed” and that BFS “would have been liable for any damage caused by workers, and ... provided the warranty to homeowners” for the work completed. In short, the district court expressly found that “[t]he workers could not profit or suffer a loss from their work with” BFS.
3. Investment in Facilities
The district court found that BFS provided all the tools and equipment necessary for the workers to perform a foundation-repair job. If a work crew needed supplies, Brueeher directed workers to purchase supplies at the store and paid for all supplies. [The] equipment and tools for a foundation-repair job cost between $3,000 and $3,500, and ... the profit from one foundation-repair job could pay for the necessary equipment and tools. Such initial investment was not de minimis, and no evidence showed workers possessed their own equipment and tools.
Briefly stated, the district court simply found that BFS’s “workers did not invest in facilities.”
4. Permanency of Relation
The district court found that “[s]ome workers did not have permanent or continuing relationships with” BFS, but that “[a] continuing relationship existed be*391tween [BFS] and certain [other] workers.” Further, “[w]orkers were free to terminate their relationship with [BFS] at any time, and often did.”
5. Skill Required
The district court found that “[pierform-ing certain aspects of [BFS]’s work involved skill, such as experience with and knowledge of ram-jack safety, and understanding the proper positioning and methodology for constructing retaining walls.” However, “some workers possessed no relevant skills when they began work with” BFS. “Because one of the workers’ major tasks was digging holes below foundations, unskilled workers were able to work for [BFS] alongside more skilled workers.”
6. Whether the Individual Workers Were in Business for Themselves
The district court found that, “[w]hen they worked for [BFS], workers did not offer their services to the public or run their own foundation-repair companies. No evidence showed that any [BFS] workers ever bid for or completed foundation-repair projects of their own. While workers worked for [BFS], they did not work for others.”
We cannot say that these findings of fact are clearly erroneous and must therefore take them as the basis for our de novo assessment of whether BFS’s workers were its employees. Weighing these facts as directed by our precedent and with a presumption in favor of employment, see Brock v. Mr. W Fireworks, 814 F.2d at 1045, we conclude that the workers in dispute here were BFS’s employees. The workers had no risk of loss, virtually no investment in facilities, and were not in business for themselves; these factors clearly favor finding employment. The moderate degree of control and relatively low level of skill required only weakly support employment. The final factor — the degree of permanence of the relationship, which varied from worker to worker — favors neither employment nor independent contractor status on these facts. Viewing all these factors together, we therefore hold that the district court did not err in finding that the workers were BFS’s employees for federal employment tax purposes.
IV. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court in favor of the United States on both BFS’s claim for refund and abatement and the United States’ counterclaim for taxes due.
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.
. Pursuant to 26 U.S.C. § 6672(a), this amount included a 100% penalty for failing to withhold and pay over to the IRS the employees' portion of their FICA taxes.
. Normally, a taxpayer may only challenge a tax debt in federal district court by making full payment of the amount due and suing for a refund. See, e.g., Bowers v. United States, 423 F.2d 1207, 1208 (5th Cir.1970) (explaining jurisdictional limitations of 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422(a)). The divisible tax rule allows a taxpayer to "pay a divisible portion of the tax ... and then test the validity of the entire assessment in a suit for refund brought ... in the District Court,” Lucia v. United States, 474 F.2d 565, 576 (5th Cir.1973), provided that the tax in dispute is "divisible” in nature, Flora v. United States, 362 U.S. 145, 175 n. 38, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). The employment taxes at issue here are divisible taxes. USLIFE Title Ins. Co. ex rel. Mathews v. Harbison, 784 F.2d 1238, 1243 n. 6 (5th Cir.1986); see also 26 U.S.C. §§ 3111(a)-(b) (imposing FICA tax as excise tax), 3301 (imposing FUTA tax as excise tax); Flora, 362 U.S. at 175 n. 38, 80 S.Ct. 630 ("[Ejxcise taxes may be divisible into a tax on each transaction or event----").
. Specifically, section 530 was substantively amended by section 269(c) of the Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, 96 Stat. 324, 552 (making section 530, originally a temporary provision, permanent); section 1706(a) of die Tax Reform Act of 1986, Pub.L. No. 99-514, 100 Stat.2085, 2781 (excepting engineers and computer programmers); and section 1122 of the Small Business Job Protection Act of 1996, Pub.L. No. 104-188, 110 Stat. 1755, 1766-68 (adding the advance notice requirement and assigning burden of proof). After the tax years in dispute here, section 530 was amended in respects not relevant to this appeal by section 864 of the Pension Protection Act of 2006, Pub.L. No. 108-280, 120 Stat. 780, 1024 (adding new subsection (0).
. For this reason, the IRS's erroneous denial BFS's administrative claim on the grounds that BFS had agreed to the assessment is irrelevant.
. Of course, the assessment could also be erroneous if the IRS incorrectly categorized BFS's workers as employees when they were in fact independent contractors. We address that issue in section III.C, infra. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480116/ | AMENDED ORDER*
THEODORE A. McKEE, Chief Judge.
A majority of the active judges having voted for rehearing en banc in the above appeal, it is ordered that the Clerk of this Court list the above case for rehearing en banc at the convenience of the Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480117/ | OPINION
PER CURIAM.
Dabin Liu petitions for review of a final removal order entered by the Board of Immigration Appeals (“BIA”). We will deny the petition.
Liu, age twenty eight, is a native and citizen of China. In 2002, he graduated from Sichuan University, and from 2003 to 2005 he studied library management in *180Paris, France. In June 2005, rather than return to China, Liu entered the United States on a tourist visa. He overstayed the visa and filed an 1-589 application for asylum in June 2006. In proceedings before an Immigration Judge (“IJ”), Liu conceded removability for overstaying, and he pursued asylum, withholding of removal, and Convention Against Torture (“CAT”) relief. Liu claims that, shortly after entering the United States, he joined the China Democracy Party (“CDP”), which seeks to promote democracy in China and opposes the ruling Communist Party. Liu testified before the IJ that he participated in ten or more protests outside the office of China’s Consul General in New York, wrote five articles for the CDP’s website, passed out flyers in the street, and attended meetings. He claims to fear future persecution in China due to his CDP activities in the United States.
The IJ rejected the credibility of Liu’s testimony. Among other things, the IJ observed that, in the 1-589 application, Liu had stated that he recruited a woman in China, Ting Zhao, to join the CDP, and that the Chinese government had learned of Liu’s CDP membership by arresting Zhao and pressuring her to identify Liu. The IJ noted that Liu made no mention in his direct testimony at the merits hearing of having recruited Zhao, of the Chinese authorities having learned of his CDP membership through Zhao, or of officials in China having visited his parents’ home after learning of his CDP activities. Because Liu neglected to mention this “centerpiece” of his asylum claim, and in light of additional inconsistencies that the IJ noted, relief was denied.
The BIA affirmed the adverse credibility determination, citing several inconsistencies in Liu’s testimony, and thus affirmed the denial of asylum and withholding of removal. The BIA also rejected Liu’s challenge to the exclusion of certain documents and testimony that Liu had sought to introduce at his April 2008 hearing.1 The BIA noted that the IJ had set an October 31, 2007, deadline for the submission of this evidence, and that Liu had failed to seek an extension of time or to show good cause for his late filing.2 The BIA also affirmed the denial of CAT relief. Liu timely filed a petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review agency factual findings, including an adverse credibility determination, under the deferential substantial evidence standard. Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quotation marks omitted).
The REAL ID Act, which the BIA properly applied here, provides that the IJ, after “[cjonsidering the totality of the circumstances, and all relevant factors,” may base an adverse credibility determination
on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the *181internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii)
We find substantial evidence to support the adverse credibility determination here. The central failing identified by the BIA was the discrepancy between Liu’s direct testimony and his 1-589 statement. As the BIA observed, “the inconsistencies included [Liu]’s failure to indicate on direct examination that his membership in the opposition party had been disclosed to government authorities by a friend he recruited into the party.” A.R. at 4. In his 1-589 statement, Liu had stated that the “China communist government had discovered the fact that I joined CDP from Ting Zhao ... another female member recruited by me.” Id. at 456. While Liu testified on direct examination that Chinese officials became aware of his CDP activities after interrogating his parents and, on cross-examination, he acknowledged that he had convinced friends in China to join the CDP, “when confronted by the [IJ] that his claim of his parents disclosing his party membership was inconsistent with his asylum application that stated his friend had made this disclosure, [Liu] refused to acknowledge the inconsistent testimony.” Id. at 4. This inconsistency, as the BIA noted, goes to the heart of Liu’s asylum application because it was the reason cited in the 1-589 application for Liu’s fear of returning to China.
The BIA noted further inconsistencies and omissions, including Liu’s “claim that he freely talked to individuals in China on the telephone and his party’s internet site was readily available in China, but could not obtain corroborative evidence of his friend’s or parents’ interrogation as the Chinese authorities closely monitored the mail and internet sites.” Id. at 4-5. In addition, Liu’s “application claimed that criminal charges had been filed against him in China, but he denied this claim at the hearing in April 2008 asserting that such charges might be filed against him if he is returned to China.” Id. at 5. Finally, the BIA noted that the IJ had relied on Liu’s “demeanor during the April 2008 hearing where he repeatedly was nonre-sponsive to questioning.” Id.
We cannot conclude on this record that any reasonable adjudicator would be compelled to find Liu credible. Liu argues that the IJ miseharacterized his testimony, and that the adverse credibility finding “was based on speculation and conjecture and the IJ’s predisposition to find against [Liu] because of his failure to comply with her scheduling order.” Petitioner’s Br. at 33. Liu bases these arguments, however, upon his own readings of the record and, particularly, upon his own view as to how the various answers that he gave to questions posed at the merits hearing should be interpreted. We must be mindful that, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Because the record fairly supports the BIA’s view of Liu’s testimony and its perceived shortcomings, Liu’s proposed alternative readings of the record are insufficient to compel a contrary credibility finding.3
Liu also challenges the decision to exclude his late-filed evidence and the wit*182ness testimony that he wished to present to corroborate his CDP membership and activities. See note 1, swpra. An IJ is authorized to “set and extend time limits for the filing of applications and related documents,” and “[i]f an application or document is not filed within the time set by the [IJ], the opportunity to file that application or document shall be deemed waived.” 8 C.F.R. § 1003.31(c). Courts review the exclusion of evidence under this provision for abuse of discretion. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.2008). We discern no abuse of discretion.
As the BIA explained at length, the IJ noted at a hearing on August 2, 2007, Liu’s desire to present his evidence, and Liu’s counsel requested a “couple of months” to obtain the evidence. The IJ set a deadline of October 31, 2007, which Liu failed to meet. The BIA found that “[t]he 3-month deadline imposed by the [IJ] was reasonable to obtain evidence that was in [Liu]’s possession or could be easily obtained by [Liu].” A.R. at 3. Further, the BIA noted Liu’s failure to notify the IJ of any difficulty in obtaining the evidence and his failure to move for late filing of the materials by showing good cause.
Liu contends that the record fails to support the BIA’s findings, and he argues that the government suffered no prejudice from his late filing. Liu concedes, as he must, that he failed to comply with the IJ’s deadline for filing, and that he did not move to enlarge the deadline, but he argues that “the IJ’s exclusion of evidence must still be reasonable under the circumstances[.]”4 Petitioner’s Br. at 24. We agree with the government that, even if Liu could show that his evidence was improperly excluded from consideration at the merits hearing, he has not shown how the admission of that evidence might have affected the credibility determination. As discussed, the adverse credibility finding was based on numerous inconsistencies and shortcomings in Liu’s testimony, particularly the inconsistency between his direct testimony and the 1-589 application on the basis for his claimed fear of returning to China. Consequently, given the absence of a showing of prejudice to Liu, we cannot conclude that the BIA abused its discretion in affirming the IJ’s decision to exclude Liu’s late-filed evidence.
For the foregoing reasons, we will deny the petition for review.
. The excluded evidence included Liu's original passport, various CDP membership materials, internet articles with their web addresses, and testimony from a witness to verify Liu's CDP membership and activities.
. The IJ’s Docket Control Order provided that “[a]ny document filed after [October 31, 2007] must be accompanied by a motion to enlarge deadline and written explanation of why the document was not filed in time.” A.R. at 545 (emphasis in original).
. The BIA's adverse credibility determination supports its decision to affirm the denial of asylum and withholding of removal. Because *182Liu does not argue his CAT claim on this appeal, we deem that issue waived and do not address it. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005).
. To the extent that Liu couches his argument in terms of a due process violation, he did not exhaust his administrative remedies before the BIA. Consequently, this Court lacks jurisdiction to consider a due process challenge. See 8 U.S.C. § 1252(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480118/ | OPINION
PER CURIAM.
Xiu Yun Zheng, a native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) July 10, 2009 order denying her motion to reconsider the BIA’s decision declining to reopen her removal proceedings. For the reasons that follow, we will deny the petition.
I.
In April 2001, Zheng entered the United States without valid entry documents. She was subsequently placed in removal proceedings and, in June 2001, she applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). She alleged that after the birth of her first child, the Chinese government forced her to have an intra-uterine device (“IUD”) inserted, and that she later had the IUD removed by her private physician. She claimed that if she returned to China, the Chinese government would arrest and fine her, and forcibly insert another IUD.
In August 2004, after a hearing on the merits, the Immigration Judge (“IJ”) denied Zheng’s application. The IJ concluded that Zheng’s testimony lacked credibility and that the Chinese government’s alleged past and anticipated conduct failed to rise to the level of persecution or torture. In December 2005, the BIA affirmed the IJ’s decision without an *184opinion. Zheng did not petition this Court to review the BIA’s decision.
In February 2009, Zheng, who was still living in the United States, moved the BIA to reopen her case in light of the birth of her second child, which had taken place in 2007. She claimed that because she now had two children, the Chinese government would sterilize her upon her return to China. In April 2009, the BIA denied the motion, concluding that the birth of Zheng’s second child “reflects a change in her personal circumstances, and does not establish a change in circumstances or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitation for filing a late motion to reopen to apply for asylum.” (Admin. Rec. at 26.) The BIA also concluded that the documentary evidence Zheng submitted in support of her motion failed to establish “a material change” in China’s family planning policy. (Id.)
Zheng subsequently moved the BIA to reconsider its denial of her motion to reopen. On July 10, 2009, the BIA denied the motion for reconsideration, concluding that Zheng “has not demonstrated an error in fact or law in our prior decision to warrant reconsideration.” (Id. at 4.) Zheng now petitions for review of the BIA’s July 2009 order.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s denial of a motion for reconsideration for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). Under this deferential standard of review, we will not disturb the BIA’s decision unless it is “ ‘arbitrary, irrational, or contrary to law.’ ” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994)).
Although Zheng’s petition challenges the BIA’s July 2009 decision, her brief focuses on the BIA’s earlier decisions, as well as the IJ’s decision. Our jurisdiction, however, is limited to review of the BIA’s July 2009 order, as Zheng did not file separate, timely petitions with respect to the other orders. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Nocon v. INS, 789 F.2d 1028, 1032-33 (3d Cir.1986). Because Zheng’s brief offers nothing that would cause us to question the BIA’s July 2009 order, we cannot conclude that the BIA abused its discretion in denying her motion for reconsideration.1 Accordingly, we will deny her petition.
. Zheng's brief does not invoke the arguments from her motion for reconsideration. None of those arguments, however, demonstrates that the BIA erred in denying her motion to reopen. As the BIA stated in its April 2009 decision, her motion to reopen reflected merely a change in her personal circumstances — the birth of her second child' — which is distinct from the showing of changed country conditions needed to prevail on her motion to reopen. See Liu v. Att'y Gen. of the U.S., 555 F.3d 145, 150-51 (3d Cir.2009). Moreover, the documentary evidence she submitted in support of that motion did not establish a material change in China’s family planning policy. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480049/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jamie Rubio has moved for leave to withdraw and has filed a brief in *398accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rubio has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. The Government’s motion to dismiss is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *398published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480051/ | PER CURIAM: *
The Federal Public Defender appointed to represent Javier Rodriguez-Rodriguez (Rodriguez) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rodriguez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480052/ | PER CURIAM: *
The Federal Public Defender appointed to represent Aaron Tableros-Montoya (Ta-bleros) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Tableros has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tii 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480054/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jose Angel Urbina-Luna (Ur-bina) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Urbina has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tii 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480055/ | PER CURIAM: *
The Federal Public Defender appointed to represent Eleanar Pimentel-Mendiola (Pimentel) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pimen-tel has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480119/ | OPINION
PER CURIAM.
J.P.S., a Colombian citizen, petitions for review of the Board of Immigration Appeals’s (“BIA”) decision affirming the denial of his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Tor-toe (“CAT”).1 For the following reasons, we will grant the petition for review.
*186I.
J.P.S. entered the United States in August 2006 and was immediately taken into custody. An asylum officer determined that he had a credible fear of persecution and released him on bond to pursue his application for asylum, withholding of removal, and protection under the CAT.
At his removal proceedings, J.P.S. claimed that he had been persecuted due to his homosexuality by the Colombian police and Fuezas Armadas Revolucionari-as de Colombia (“FARC”).2 He testified that, in 2004, drug dealers associated with FARC moved into his Medellin neighborhood, and that after identifying him as a homosexual, they verbally harassed and threw stones at him. In early 2005, J.P.S.’s brother, Ruben, informed the Medellin police that FARC had infiltrated the neighborhood and that its members were dealing drugs. J.P.S. testified that Ruben informed on FARC in an effort to stop them from harassing him. FARC members instead shot Ruben to death. Two weeks later, J.P.S.’s second brother, Luis, drunkenly confronted FARC members regarding the murder of Ruben and their harassment of J.P.S. FARC members responded by killing Luis. After Luis’s murder, FARC members began threatening J.P.S. by stating, “faggot, faggot, what happened to your brother is going to happen to you,” and that they were going to “put a stick in [his] behind.”
Meanwhile, in early 2005, after gathering in a public park known for tolerance of homosexuality, J.P.S. and several friends were taken into police custody. J.P.S. testified that he was held at the police station for approximately twelve hours and was verbally abused for being gay — the police stated that they “didn’t want to see the faggots” and that they “had to clean their neighborhoods.” The police also threw cold water on him and forced him to sit in wet clothes. Before he was released, he was told that if he or his friends spoke out about what had happened, they were the ones who “were going to suffer.”
In December 2005, J.P.S. moved to Bogota because the situation in Medellin was “becoming unbearable.” He chose Bogota because a friend in the same profession was able to find work there. J.P.S. testified that although Bogota was more progressive than Medellin, it was not without anti-gay bias and violence. He recounted one instance in which a friend was killed after leaving a disco with a young man. He also asserted that he was forced to run into discos to avoid confrontations with anti-gay groups.
After spending one month in Bogota, J.P.S. returned to Medellin to help care for his mother. In Medellin, the “aggressions” by FARC “intensified.” They told him that if he did not want to end up like his brothers, he must either pay a weekly quota or deal drugs for them. If he complied with their demands, they would allow him to “be gay and in peace.” When J.P.S. ignored them demands, FARC members began physically assaulting him. From April to August 2006, J.P.S. was assaulted eight-to-ten times while at the bus stop, walking to and from his house, and in front of his house. The most serious incident occurred at the door to his *187house when FARC members hit him, kicked him in the stomach, and scraped his hand with a razor. Soon after he was attacked at the bus stop, J.P.S. left for the United States.
The Immigration Judge (“IJ”) denied J.P.S.’s requests for relief, concluding that the incidents he described did not rise to the level of persecution and that evidence of current country conditions undermined his claimed fear of future persecution. The BIA affirmed the IJ’s decision and dismissed J.P.S.’s appeal. Although the IJ did not specifically make such a finding, the BIA assumed that J.P.S. was mistreated on account of the protected ground of his sexual orientation, but agreed that J.P.S.’s experiences were not sufficiently severe to constitute past persecution. The BIA also concluded that the IJ did not err in finding that J.P.S. failed to demonstrate a well-founded fear of future persecution.
J.P.S., through counsel, now petitions for review of the BIA’s final order of removal.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s decision for substantial evidence, considering whether it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Balasubramanrim v. I.N.S., 143 F.3d 157, 161 (3d Cir.1998) (internal quotation and citation omitted).3 The decision must be affirmed “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001)).
An applicant for asylum has the burden of establishing that he is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]” 8 U.S.C. § 1101(a)(42)(A). 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) (internal quotation and citation omitted).
Here, the BIA agreed that the IJ properly denied J.P.S.’s claims because his experiences did not rise to the level of persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005).4 The BIA relied, in large part, on the lack of severity of J.P.S.’s injuries. Concentrating solely on the lack of severe physical harm, however, minimized the nature of the situation and ignored much of the evidence supporting J.P.S.’s claim. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002) (requiring the BIA to demonstrate that it has reviewed the record and grasped the movant’s claims). For example, the BIA did not acknowledge that the people who physically and verbally assaulted J.P.S. had murdered two of his brothers. While J.P.S. conceded that Ruben was killed because he reported FARC’s drug dealing to the police, he testified that Luis was killed at least in part because he tried to defend him. Regardless of why J.P.S.’s brothers *188were killed, their murders made FARC’s subsequent targeting of J.P.S. particularly foreboding. Thus, when viewed in a wider context, FARC’s constant threats and repeated physical attacks on J.P.S. — even if they did not result in life-threatening injuries — may rise to the level of persecution. See De Santamaria v. Att’y Gen., 525 F.3d 999, 1009 (11th Cir.2008); cf. Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir.2005) (stating that isolated incidents that do not result in serious injury do not rise to the level of persecution). The BIA’s failure to acknowledge significant aspects of J.P.S.’s claim renders us unable to adequately to consider whether substantial evidence supports its determination that J.P.S. failed to establish past persecution. See Chavarria v. Gonzalez, 446 F.3d 508, 517-18 (3d Cir.2006) (remanding after determining that the BIA’s mischaracterization and understatement of the evidence established that its decision was not supported by substantial evidence); Chen v. I.N.S., 359 F.3d 121, 127-28 (2d Cir.2004); Sevoian, 290 F.3d at 178.5
For the foregoing reasons, we conclude that the BIA did not adequately consider J.P.S.’s application for asylum and withholding of removal. We therefore cannot accept its determination that he failed to establish past persecution.6 Accordingly, we will grant J.P.S.’s petition for review, vacate the BIA’s decision, and remand the case for further proceedings.
. J.P.S. has not challenged, before the BIA or this Court, the Immigration Judge's denial of his CAT claim.
. “FARC is a leftist guerilla organization that originally was established to serve as the military wing of the Colombian Communist Party.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 668 (7th Cir.2005). Where FARC exercises control, it "in effect displaces civil government. Even where FARC does not fully displace the civilian government, it nevertheless operates without [sic] impunity as a result of a reign of terror....” Id.
. J.P.S. incorrectly asserts that the BIA substantially adopted and affirmed the decision of the IJ and that we should thus review the IJ’s and the BIA’s decisions. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Because the BIA did not defer to the IJ’s findings or adopt the IJ’s opinion, we review the BIA's decision only. See Abdulai v. Ashcroft, 239 F.3d 542, 545, 549 (3d Cir.2001).
. Because the BIA made no explicit finding as to J.P.S.'s credibility, we proceed as if his testimony were credible. Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003).
. We do, however, conclude that substantial evidence supports the BIA’s decision that J.P.S.'s detention by the Colombian police, in and of itself, does not rise to the level of persecution. See Kibinda v. Att'y Gen., 477 F.3d 113, 119 (3d Cir.2007).
. Because we have determined that the BIA's decision regarding past persecution is not supported by substantial evidence, we do not consider its determination as to J.P.S.'s fear of future persecution. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480056/ | PER CURIAM: *
The Federal Public Defender appointed to represent Francisco Macias-Rocha has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Macias-Rocha has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *409the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480058/ | PER CURIAM: *
The attorney appointed to represent Jaime George Luna has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Luna has filed a response. Our independent review of the record, counsel’s brief, and Luna’s response discloses no nonfrivo-lous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480059/ | PER CURIAM: *
The attorney appointed to represent Isaac Ronald Skinner, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Skinner has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480060/ | PER CURIAM: *
The attorney appointed to represent Darrell Murphy has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Murphy has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480063/ | PER CURIAM: *
The Federal Public Defender appointed to represent Derly De La Garza has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). De La Garza has filed a response. Our independent review of the record, counsel’s brief, and De La Garza’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5tu 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480064/ | PER CURIAM: *
The attorney appointed to represent Filomeno Trevino Franco has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Franco has filed a response. Our independent review of the record, counsel’s brief, and Franco’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480065/ | PER CURIAM: *
The Federal Public Defender appointed to represent Mario Medrano-Bonilla has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Medrano-Bonilla has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is ex*437cused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480066/ | PER CURIAM: *
The attorney appointed to represent Ys-rael Mustafa-Bernabe has moved for leave to withdraw and has fried a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mustafa-Bernabe has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480069/ | PER CURIAM: *
Jade R. Andrus and Brad T. Andrus appeal their convictions and sentences for taking migratory birds by aid of bait in violation of 16 U.S.C. § 703. The appellants argue that the evidence was insufficient to support their convictions because the Government failed to establish that the field was baited because there was evidence the field had been harvested and there was evidence that the harvest of milo with a stripper header was a normal agricultural practice. They also challenge the sufficiency of the evidence on the argument that the Government failed to prove they should have known the field was baited. The appellants contend that they are not farmers and have no farming knowledge and therefore cannot reasonably be expected to know that the field was baited.
In a case tried before a magistrate judge and affirmed on appeal by the district court, this court “will affirm the magistrate’s findings if they are supported by substantial evidence.” United States v. Lee, 217 F.3d 284, 288 (5th Cir.2000). “Evidence is sufficient to support a conviction if any rational trier of fact could have found the evidence established guilt beyond a reasonable doubt.” United States v. Morgan, 311 F.3d 611, 613 (5th Cir.2002) (internal quotation marks and citation omitted). The court examines the evidence as a whole, construing it in the light most favorable to the Government. Id.
The appellants’ argument that there was testimony that the field was harvested refers to the testimony of Danny Senegal, an employee of the Andrus farm. The magistrate judge implicitly rejected his testimony as incredible, noting that the federal agents with the United States Fish and Wildlife Service testified credibly that the field in question had not been harvested. It is not the function of this court to disturb credibility determinations made by lower courts. United States v. Turner, 319 F.3d 716, 720-21 (5th Cir.2003). Additionally, the testimony of the appellants’ expert, Andre Fabacher, did not support a conclusion that the use of a stripper header to harvest milo was a normal agricultural practice. Mr. Fabacher testified that he had never witnessed the harvesting of milo *483with a stripper header and only knew of one person, Roland Andrus, who had harvested milo with the device. Roland An-drus was the appellants’ father, and he owned the field in question. Mr. Fabacher further admitted that using a stripper header to harvest milo was not a recommended practice.
The appellants’ argument that they could not be expected to know that the field was baited ignores their duty to conduct a reasonable inspection of the field, as set forth in United States v. Delahoussaye, 578 F.2d 910, 912 (5th Cir.1978); see Lee, 217 F.3d at 289. The testimony established that they did not perform an inspection of the field. Further, the agents testified that the condition of the field was obvious and that the unharvested milo was near the blind and the decoys set out by the appellants on the day prior to the hunt. Moreover, the appellants’ father owned the farm. Viewed in a light favorable to the Government, the evidence is substantial and supports the convictions of the appellants. See Lee, 217 F.3d at 288.
The appellants also argue that the Government failed to timely disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, they contend that the Government did not disclose the curriculum vitae of expert Dr. Ronald Levy until the morning of trial. Dr. Levy’s testimony contained no exculpatory or favorable information for the appellants that had been withheld by the Government. Thus, the appellants fail to show that the Government violated their constitutional rights by withholding exculpatory evidence. See United States v. Moore, 452 F.3d 382, 387 (5th Cir.2006).
Even assuming that the appellants are alleging a discovery violation, the magistrate judge’s decision to admit Dr. Levy’s testimony was not an abuse of discretion where the appellants were allowed to present their own expert witness, they effectively cross-examined Dr. Levy, and they did not move for a continuance of the trial. See United States v. Aguilar, 503 F.3d 431, 434 (5th Cir.2007).
Finally, the appellants argue that the admission of Dr. Levy’s testimony was error by the district court because he was not an expert in the harvesting of milo. The appellants note that Dr. Levy testified that it was not a normal agricultural practice to use a stripper header in the harvesting of milo.
It is unnecessary for this court to determine whether the admission of Dr. Levy’s testimony was error. Any error in admitting evidence in a bench trial is harmless if there exists other admissible evidence sufficient to support the conviction. United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993). The appellants’ expert, Mr. Fabacher, also testified that it was not the recommended practice to use a stripper header in the harvesting of milo. As such, any error in admitting the testimony of Dr. Levy was harmless. See id.
Accordingly, the judgment of the district court is AFFIRMED.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480070/ | PER CURIAM: *
The question before us is whether the district court properly granted the Government’s summary judgment motion in this tax case. Because the district court erred in not viewing the evidence in the light most favorable to Payne and because our de novo review convinces us that there are *485material issues of fact such that summary judgment was improper, we VACATE and REMAND.
I. FACTUAL BACKGROUND
Jerry S. Payne appears in this case pro se. Payne was the president and sole shareholder of JKP Enterprises (“JKP”), a corporation that operated a topless bar called Caligula XXI (the “Club”).1 Payne hired individuals to handle affairs and delegated duties at the Club because he did not review JKP’s financial statements or attend business meetings. With regard to financial matters, including payroll taxes, Payne stated that “the CPA was supposed to overlook [sic] the whole thing.” The Club’s long-time CPA, Tim Wynada, left JKP in 1998 or early 1999, due to the lack of funds. After Wynada’s departure, Payne hired Amy Urbanek to help with JKP’s business matters. Urbanek, along with Club employees Scott McCarthy, Mitchell White, and Aaron Racicot, were “in charge of overseeing the club’s office” during 1999.
Payne signed JKP’s Form 941 for the 1st Quarter 1999. He testified that when McCarthy presented him with the 1st Quarter Form 941, McCarthy told him that “everything was paid for.” The 1st Quarter Form 941 listed JKP’s tax due for the quarter as $25,134.58 and stated that the requisite deposits had been made. Payne did not review or verify the Form nor ensure that anyone actually made any of the tax deposits listed.
JKP did not file Forms 941 for the 2nd, 3rd, or 4th Quarter 1999. During those quarters, however, JKP continued to pay various creditors, including the Club’s landlord, the Texas Comptroller, and the Club’s employees. After the 1st Quarter, JKP did not deposit or pay withholding taxes due. Payne “did not learn that the payroll taxes had not been paid until late 2000.” The Club floundered in 1999, and JKP ceased to operate in September 1999.2
The IRS assessed recovery penalties against Payne for JKP’s short payment of withholding taxes from the 1st Quarter 1999 and failure to pay withholding taxes from the 2nd, 3rd, and 4th Quarters 1999 under 26 U.S.C. § 6672.3 The IRS assessed $16,916.26 against Payne for the 1st Quarter, representing the difference between the amount of taxes stated on the 1st Quarter Form 941 and the amount actually deposited. The IRS prepared substitutes for the missing Forms 941 under IRC § 6020(b), basing JKP’s liabilities *486on amounts the IRS claims to have received from the Texas Workforce Commission, representing wages paid by JKP during the periods in question. The IRS assessed $39,541,82 for each of the outstanding quarters, along with penalties and interest.
Payne paid a portion of each assessment ($25 for each employee for each quarter) and filed an administrative claim for a refund with the IRS. The IRS denied Payne’s claim and subsequently withheld $6,000 from Payne’s personal income tax refunds. Payne filed suit in the Southern District of Texas claiming that the IRS had erroneously withheld his tax refund because the Government could not ascribe JKP’s tax liabilities to him and erroneously calculated the assessments for the 2nd, 3rd, and 4th Quarters. The Government counterclaimed for the unpaid balance of JKP’s assessments.
Payne requested production of Form 23C Assessment Certificates, and the Government responded by producing two different sets of Forms 4340, one for Payne and one for JKP.4 The Payne Forms 4340 state the “Assessment date (23C, RAC 006)” for each assessment period and show a “miscellaneous penalty” under § 6672 trust fund recovery as $16,916.26 for the 1st Quarter 2009, and $30,972.17 for the 2nd, 3rd, and 4th Quarters 2009.5 The JKP Forms 4340 also show the pertinent assessment periods, but reflect outstanding tax liability balances of $20,110.57 for the 1st Quarter 1999, and “substitute for return” amounts of $39,541.32 for the 2nd, 3rd, and 4th Quarters 1999.6 When the Government failed to produce Forms 23C, Payne moved for discovery sanctions. A magistrate judge denied Payne’s motion, and the parties cross-moved for summary judgment on the assessments.
The Government’s evidence consisted of the Forms 4340, JKP’s bank statements from Comerica demonstrating checks signed by Payne, and deposition testimony from various individuals involved with JKP. Payne’s evidence consisted of affidavits and deposition testimony, payroll figures from Comerica, and the Government’s failure to produce Forms 23C. According to Payne, the amounts charged should have been $22,366.30 for the 2nd Quarter, $1,448.00 for the 3rd Quarter, and, because JKP went out of business, $0 for the 4th Quarter.
The district court denied Payne’s motion and granted the Government’s motion for summary judgment. The court rejected Payne’s argument, holding that the produced Forms 4340 were “valid evidence of Payne’s assessed liabilities and the IRS’s notice thereof.” The court next held that Payne was a “responsible person” under § 6672 and therefore potentially liable for JKP’s failure to pay withholding. The court also held that Payne had “not adduced evidence sufficient to create a genuine issue regarding [his] willfulness” because the court found that Payne had “recklessly disregarded the obvious risk that JKP’s taxes were not remitted to the Government.” Finally, the court rejected Payne’s submissions regarding the *487amounts of the 2nd, 3rd, and 4th Quarter 1999 assessments because the court found the offered testimony “equivocal” and was not convinced that the Comerica bank account was the only one used for payroll. Payne timely appealed.
II. DISCUSSION
We review de novo the district court’s award of summary judgment, applying the same standard as the district court. Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir.2001). Summary judgment is proper when “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). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “On cross-motions for summary judgment, we review each party’s motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” Ford Motor Co., 264 F.3d at 498.
A. Was There a Material Issue of Fact Regarding the Assessments?
Under IRC §§ 3102(a) and 3402(a), employers must withhold federal social security and income taxes from the wages of employees and deposit those funds, in trust, for the Government. If a corporation fails to pay withholding taxes, the appropriate amount is “recorded as ‘assessments.’ ”7 See Brafman v. United States, 384 F.2d 863, 865 n. 4 (5th Cir.1967) (quoting 26 C.F.R. § 601.104 (1966)). IRC § 66728 gives the IRS a powerful weapon against nonpayment of withholding taxes, allowing the IRS to circumvent traditional liability constructs and pursue certain individuals for 100 percent of the corporation’s unpaid taxes. An individual faces liability under § 6672 if he (1) is a person responsible for the payment of withholding taxes, Mazo v. United States, 591 F.2d 1151, 1156 (5th Cir.1979); and (2) willfully failed to pay the taxes. See Logal *488v. United States, 195 F.3d 229, 232 (5th Cir.1999). On appeal, Payne does not dispute that he was a responsible person.
*487Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.
*488Form 4340 creates a rebuttable presumption of validity. Stallard v. United States, 12 F.3d 489, 493 (5th Cir.1994) (citing United States v. McCallum, 970 F.2d 66, 71 (5th Cir.1992)). In McCallum, we held that Form 4340 can be “presumptive proof of a valid assessment where the taxpayer has produced no evidence to counter that presumption.” 970 F.2d at 71 (citations omitted). Most recently, in United States v. Rupe, this Court held that the Government discharged its obligations by providing the taxpayers with Form 4340 and RACS 006 (a computer generated descendant of Form 23C). 308 Fed.Appx. 777, 778-79 (5th Cir.2009) (per curiam) (unpublished).
Here, the Government provided Forms 4340 that listed the pertinent taxpayer’s name, assessment period, assessment date, nature of the assessment, and amount. However, unlike in McCallum in which no evidence was produced by the taxpayer, Payne’s affidavit questions many of the facts that the Government relies on and offers a different interpretation of events. Payne also contends that these figures cannot be correct, based on testimony that JKP ceased to operate in the fall of 1999 and the bank accounts containing much lower amounts. These discrepancies created a material issue of fact, and the distinct court erred in granting summary judgment on the assessment issue.
B. Did the Government Establish “Willfullness ”?
Under § 6672, a responsible person is only liable for 100 percent of the corporation’s withholding taxes if she “willfully failed to perform a duty to collect, account, and pay over the tax.” Mazo, 591 F.2d at 1154 (internal quotations omitted). Willfulness requires a “voluntary, conscious, and intentional act.” Gustin v. United States, 876 F.2d 485, 492 (5th Cir.1989) (citing Wood v. United States, 808 F.2d 411, 415 (5th Cir.1987)). It may be established with “evidence that the responsible person paid other creditors with knowledge that withholding taxes were due at the time to the United States.” Id. (citing Wood, 808 F.2d at 415; Howard v. United States, 711 F.2d 729, 736 (5th Cir.1983)). Moreover, willfulness includes a “reckless disregard of a known or obvious risk that trust funds would not be paid over to the United States.” Id. (citing Wood, 808 F.2d at 415). Nonetheless, we have cautioned that “[m]ere negligence ... does not establish willfulness.” Id. (citations omitted). This Court has also held that reckless disregard includes a “fail[ure] to investigate or to correct mismanagement after being notified that withholding taxes have not been duly remitted.” Mazo, 591 F.2d at 1155 (citations omitted). The Eleventh Circuit, using language similar to that in our Wood opinion, has held that “a responsible person is liable under § 6672 if he or she either had actual knowledge that the taxes were not being paid or acted with a reckless disregard of a known or obvious risk of nonpayment.” Malloy v. United States, 17 F.3d 329, 332 (11th Cir.1994).
The Government’s argument rests on the premise that Payne knew or should have known that the taxes were due and that the individuals responsible for the payment of taxes were unreliable; therefore, Payne should have inquired as to the tax payments. But in viewing the facts in the light most favorable to Payne, there is a genuine issue of material fact with respect to whether Payne willfully failed to pay the withholding taxes. In the face of such conflicting evidence, we decline to uphold the district court’s ruling that the *489entire record is devoid of a triable issue of fact.
C. Did the Government Establish the Correct 2nd, 3rd, and Uth Quarter Amounts?
To rebut the summary judgment motion on the amount of assessments at the summary judgment stage, Payne must merely produce a triable issue of fact to rebut the Government’s presumption. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (noting that movants for summary judgment may prevail only if they have demonstrated that there are no genuine issue of material fact). The identical figures for the 2nd, 3rd, and 4th Quarters 1999, the bank accounts, and the testimony of JEP’s closure create material issues of fact.
Payne presented the following evidence to rebut the Government’s presumption of validity: Comerica corporate bank accounts showing the payroll accounts for those quarters and affidavits and testimony that JKP went out of business at the end of the 3rd Quarter. Payne did not come forward with any other business records to reflect the closure of JKP because all of the records were lost or destroyed. The assessments for the 2nd, 3rd, and 4th Quarters 1999 are strange because the amounts are identical. The shared figures might be typical for a business with consistent salaries and employees, but JKP’s business was volatile. There is ample testimony concerning staffing changes and business cash flow problems to indicate that static withholding taxes would not have occurred. The district court dismissed Payne’s submitted Comerica bank accounts because Payne could offer no other evidence that these accounts were the only ones used for payroll and found testimony regarding JKP’s closure to be “equivocal” because the court felt that the affiant relied entirely on information conveyed by Payne. The court failed to view the evidence in the light most favorable to Payne. See Ford Motor Co., 264 F.3d at 498. Further, these determinations are questions of fact for the fact finder. See Gates, 537 F.3d at 417. Thus, the district court erred in granting summary judgment on the amount of assessments.
III. CONCLUSION
Accordingly, we VACATE and REMAND the district court’s grant of summary judgment on all issues.
Pursuant to 5th Cut. 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 Cm. R. 47.5.4.
.Personally, or through JKP Enterprises, Payne has appeared before the Fifth Circuit five times. See Payne v. Comm’r, 224 F.3d 415, 424 (5th Cir.2000) (reversing Tax Court finding of unpaid back taxes outside of the statutory period, because the Government failed to present clear and convincing evidence of fraud); see also Gordon v. JKP Enterprs., Inc., 71 Fed.Appx. 441 (5th Cir.2003) (per curiam) (unpublished) (affirming an award of attorney’s fees); Gordon v. JKP Enterps., Inc., 35 Fed.Appx. 386 (5th Cir.2002) (per curiam) (unpublished) (considering claims of racial discrimination and awards by the district court); see also Payne v. United States, 107 Fed.Appx. 445 (5th Cir.2004) (per curiam) (unpublished) (affirming district court’s amended finding of good faith interpretation of statute on the part of the IRS agent); Payne v. United States, 289 F.3d 377, 384-85 (5th Cir.2002) (reversing a district court's finding of bad faith on the part of an IRS agent and remanding for findings). The colorful history of the Club is recounted more fully in those cases.
. Accordingly to Payne, the records of the Club, including any evidence of the Club's closure, were lost or destroyed after JKP ceased to operate and was taken over by others.
. Hereinafter, Title 26 of the United States Code, comprising the Internal Revenue Code, will be referred to as the “IRC.’’
. Form 4340, the Certificate of Assessments, Payments and Other Specified Matters, is a summary statement of the outstanding taxes owed by a taxpayer.
. The outstanding balance on the 1st Quarter Form 4340 is $11,342.47, and the outstanding balance on the 2nd Quarter Form 4340 is $30,872.17. These slight reductions from the full assessment amounts represent subsequent credits or adjustments to the assessments.
.The actual amounts owed by JKP are $58,459.38 for the 2nd Quarter 1999, $57,508.91 for the 3rd Quarter, and $52,436.41 for the 4th Quarter. The different balances for each period reflect the accumulation of interest on the outstanding amounts.
. Under IRC § 6203, an assessment "shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary." Treasury Regulation section 301.6203-1 governs the manner of making assessments:
The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by an assessment officer. Under this same section, "[i]f the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.” Id.
. Section 6672 provides that: | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480071/ | EDITH H. JONES, Chief Judge: *
Jose Lopez challenges his conviction for illegal reentry, in violation of 18 U.S.C. § 1826(a) and (b). Among other claims, Lopez contends that his Sixth Amendment right to counsel was violated because he did not knowingly and intelligently waive the right. We agree and vacate and remand for a new trial.
Lopez was indicted for knowingly and unlawfully attempting to enter the United States without proper consent after previously being denied admission, excluded, deported, and removed. On the day of trial, Lopez asked the district court to appoint a different lawyer or to allow him to proceed pro se. The district court then engaged in a circuitous colloquy with Lopez concerning this issue. Following this discussion, the district court allowed Lopez to proceed pro se with standby counsel. After a bench trial, Lopez was convicted and he appeals.
In Faretta v. California, the Supreme Court held that the Sixth Amendment entitles a criminal defendant to forgo the assistance of counsel and represent himself. 422 U.S. 806, 832-34, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, the Court recognized that a defendant who relinquishes his right to counsel “relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.” Id. at 835, 95 S.Ct. 2525.
For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
Id. (internal citations and quotations omitted). Such warnings must be given even if the court provides stand-by counsel. United States v. Davis, 269 F.3d 514, 520 (5th Cir.2001). The question here is whether the judge sufficiently warned Lopez of the dangers of waiving his right to counsel so that Lopez could “knowingly and intelligently” choose to represent himself. We review this issue de novo. United States v. Joseph, 333 F.3d 587, 589 (5th Cir.2003).
This court has never required a set script for warning defendants about the dangers of self-representation, Davis, 269 F.3d at 518-519, but we have described generally what a trial judge must do before granting such a request:
[T]he trial judge must caution the defendant about the dangers of such a course of action so that the record will establish that he knows what he is doing and his choice is made with eyes open. In order to determine whether the right to counsel has been effectively waived, the proper inquiry is to evaluate the circumstances of each case as well as the background of the defendant.
United States v. Martin, 790 F.2d 1215, 1218 (5th Cir.1986) (internal citations and *491quotations omitted). In particular, the trial judge should consider various factors:
The court must consider the defendant’s age and education, and other background, experience, and conduct. The court must ensure that the waiver is not the result of coercion or mistreatment of the defendant, and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedings, and the practical meaning of the right he is waiving.
Id. (internal citations and quotations omitted).
The court has reviewed the record with great care. Without reciting the district court’s confusing exchange with Lopez, we conclude that the trial judge did not fully discharge his responsibility. The district court asked pertinent questions regarding Lopez’s competency to represent himself, but the record before us reveals only a series of disjointed ramblings by Lopez. Although he was a clear manipulator and had the potential to be and had been disruptive, we cannot infer from his dialogue with the court what factual basis the court had for finding him capable of self-representation. Noticeably absent, moreover, were warnings to Lopez of the consequences of self-representation. It is a close call, but the record is too sketchy to conclude that Lopez made his choice with eyes open.
We therefore must vacate Lopez’s conviction and remand for a new trial.
VACATED and REMANDED.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480072/ | PER CURIAM: *
Robert James Lee, Texas prisoner # 1094546, appeals the dismissal of his 42 U.S.C. § 1983 complaint as untimely filed and frivolous, and for failure to state a claim upon which relief may be granted.1 Lee seeks the removal of a 2003 notation in his prison records indicating that he once took part in an escape plot. He says the entry of the notation — a “security precaution designator” — violates his constitutional rights because he was not afforded a disciplinary hearing.
By his own admission, Lee first learned of the existence of the escape notation in his record at a classification hearing on August 14, 2003. It was on this date, then, that he became aware of the facts that might ultimately support a claim.2 Yet Lee filed this federal complaint on June 14, 2008, well after the two-year statute of limitations had run.3 He puts forth no legitimate reason to excuse this tardiness so we find his lawsuit time-barred.4 And at any rate, Lee’s alleged injuries do not implicate the deprivation of a constitutional right.5 We AFFIRM the district court’s dismissal of Lee’s § 1983 action.
That said, Lee is entitled to a partial refund of the fee incurred in filing this lawsuit in the district court: according to our math, he overpaid. We VACATE the district court’s judgment denying a refund, and DIRECT that court’s clerk to refund any overpayment.
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.
. See 28 U.S.C. § 1915A(b)(1).
. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.2001); see also Moore v. McDonald, 30 F.3d 616, 621 (5th Cir.1994).
. See Stanley v. Foster, 464 F.3d 565, 568 (5th Cir.2006) (applying Texas law’s two-year statute of limitations to a Texas prisoner’s § 1983 suit).
. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990) (plaintiff must exercise due diligence to qualify for equitable tolling); Rogers v. Ardella Veigel Inter Vivos Trust No. 2, 162 S.W.3d 281, 290 (Tex.App.Amarillo 2005, pet. denied) (continuing tort only exists when wrongful conduct is repeated over a period of time); Booker v. Real Homes, Inc., 103 S.W.3d 487, 493 (Tex.App.San Antonio 2003, pet. denied) (no fraudulent concealment when defendant did not have actual knowledge of the wrong) (emphasis added).
. See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir.2000); Madison v. Parker, 104 F.3d 765, 767-68 (5th Cir.1997). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480073/ | PER CURIAM: *
Jacob C. Guzman, a prison guard at the Reeves County Detention Center, accepted *494bribes from the family members of inmates in exchange for smuggling contraband into the facility. After a jury trial, he was convicted of two counts of acceptance of a bribe by a public official, destruction of property to prevent seizure, and providing contraband in a prison and sentenced to forty-six months’ imprisonment. Guzman challenges his sentence, arguing the district court erred in applying a four-level enhancement based on the conclusion that he was a “public official in a high-level decision-making or sensitive position” under U.S.S.G. § 201.1(b)(3). We review the interpretation and application of the sentencing guidelines by the district court de novo and its factual findings for clear error.1
Guzman first challenges the four-level enhancement under Apprendi v. Neiu Jersey; 2 claiming the jury was required to decide whether Guzman’s prison guard position was a high-level decision-making or sensitive position. That argument is untenable because a jury verdict is only necessary under Apprendi if the fact found by the sentencing judge increases the sentence above the statutory maximum, which is not the case here.3
Turning to the enhancement, we find the district court did not err. Guzman concedes that he is a public official, contending only that, as a low-level prison guard, he does not qualify as an official in a high-level decision-making or sensitive position. The district court based its decision to apply the four-level enhancement on its finding that Guzman had “substantial influence over the decision-making process ... and day-to-day management and safety of the facility,” and that prison guards are the source of all disciplinary reports used to determine, among other things, forfeiture of visitation, good time, and commissary privileges. The district court also noted that corruption by prison staff has had dire effects, including rioting by inmates that risked the safety of inmates and staff.
The commentary to § 2C1.1 defines a high-level decision-making or sensitive position as “a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process,” and includes as examples the position of “law enforcement officer” and “any other similarly situated position.”4 This court has held that a sensitive position is one that has power to affect the integrity and workings of the judicial and law enforcement system.5 A prison guard has the authority and the ability to directly and significantly influence inmates’ lives and the entire facility’s safety with the decisions he or she makes. Such *495power within the judicial system makes the position of prison guard a sensitive position under the sentencing guidelines.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *494the limited circumstances set forth in 5th Cir. R. 47.5.4.
. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir.2008); United States v. Villegas, 404 F.3d 355, 358-59 (5th Cir.2005).
. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)
. See also id. at 490, 120 S.Ct. 2348.
. Notably, the commentary was amended in 2004 to suggest officers need not be in a supervisory position to be considered "sensitive." The amendment replaced the example "supervisory law enforcement officers” with the current "law enforcement officers." See U.S.S.G. Amend. 666 (effective Nov. 1, 2004).
.See United States v. Snell, 152 F.3d 345, 348 (5th Cir.1998) (affirming the sentence enhancement of a juror as an official in a high-level decision-making or sensitive position); see also United States v. Merker, 334 Fed.Appx. 953, 966 (11th Cir.2009) (per curiam) (unpublished) (holding a Customs and Border Patrol agent qualified as an official in a sensitive position). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480074/ | PER CURIAM: *
Dr. Calvin Ramsey appeals his conviction after a jury trial for filing false tax returns for the years 2000 and 2001. The district court sentenced him to two 27-month prison terms — one for each count he was convicted of — to be served concurrently.
When Ramsey filed his brief in this court, he also submitted a report of a forensic document examiner concluding that Ramsey did not personally sign his 1999 tax return, which was admitted at trial for purposes of showing intent, knowledge, and lack of mistake related to the filing of the false 2000 and 2001 returns. The Government successfully moved to strike the report, arguing that it was not part of the record before the district court. Ramsey has now moved to reconsider and to supplement the record with this report. We review judgments on the basis of the record before the district court and will not ordinarily expand the record to consider evidence that was not submitted below. See McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir.2008); Fed R. App. P. 10(a). At trial, Ramsey admitted that he signed the 1999 return, and, even now, he does not disavow that he knew its contents when it was submitted it to the IRS. Thus, Ramsey has not provided a sufficient basis to depart from our general rule here.
Next, we consider Ramsey’s challenges to his conviction. He first argues that an IRS agent provided “incorrect” testimony that Ramsey signed the 1999 tax return. However, Ramsey points to no evidence in the record that the signature was not his. See 26 U.S.C. § 6064 (explaining that an individual’s name signed on a tax return is prima facie evidence that he actually signed the return). Indeed, Ramsey testified at trial that he signed the 1999 return. Thus, the record does not support Ramsey’s contention that the IRS agent’s testimony was incorrect, much less that its admission was reversible error. Cf. United States v. Haese, 162 F.3d 359, 365 (5th Cir.1998) (explaining that to obtain a reversal based on false testimony, the defendant must show that the prosecution knowingly put forward false testimony that was material).
Ramsey also argues that, with the accuracy of the agent’s testimony about the signature in doubt, the evidence was insufficient to convict him. The premise of his argument — that the testimony indeed was inaccurate — is not supported in the record, and thus this argument, too, fails.
Ramsey then contends that IRS records related to his 1999 tax return should have been excluded under Fed. R. Evid. 408 as evidence relating to an offer to compromise made during negotiations between Ramsey and the IRS to settle the assessed tax liability for that year. Ramsey did not object to this evidence on the basis of Rule 408; thus, our review is for plain error. See United States v. Smith, 354 F.3d 390, 396 n. 7 (5th Cir.2003).
Rule 408 does not apply here. That rule prohibits the introduction of evidence of settlement negotiations “offered to prove liability for, invalidity of, or amount of a claim that was disputed as to *498validity or amount, or to impeach through a prior inconsistent statement or contradiction,” but expressly permits the introduction of evidence offered for other, permissible purposes. Fed. R. Evid. 408(a), (b); see Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 551 (5th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1285, — L.Ed.2d - (2010). Here, the IRS records were not admitted for a prohibited purpose; rather, they was admitted to prove intent, knowledge, and the absence of mistake, see Fed. R. Evid. 404(b). Moreover, the IRS records do not suggest, and Ramsey points to no evidence to suggest, that the amounts of the tax assessments and penalties reflected in the records were the result of settlement negotiations rather than the IRS’s independent determination of Ramsey’s liability.
Ramsey next argues that the district court violated the Confrontation Clause in allowing into evidence out-of-court statements made by his tax preparer. Ramsey’s tax preparer died before the start of trial, and the district court granted Ramsey’s motion to exclude evidence of the tax preparer’s statements. Ramsey contends that nonetheless, two Government witnesses were permitted to testify regarding the tax preparer’s out-of-court statements.
First, Ramsey takes issue with the following testimony, put forward by an IRS agent who investigated Ramsey’s 1999 tax return: “He told me Dr. Ramsey provided a statement to his tax preparer and on that statement was a piece of paper and he — Dr. Ramsey listed income and expenses.” At trial, Ramsey did not object to this testimony, so we review for plain error. See United States v. Acosta, 475 F.3d 677, 680 (5th Cir.2007). Although the statement Ramsey points to is ambiguous in isolation, when taken in context, it is evident that the testimony referenced comments made by Ramsey, not the tax preparer. Thus, there was no plain error in admitting it.
Second, Ramsey challenges the admission of testimony of a different IRS agent. On cross-examination regarding the agent’s knowledge of the information that Ramsey provided to his tax preparer, the agent referenced the tax preparer’s statement.1 This testimony came in the context of and was responsive to an effort by defense counsel to establish that the agent had no basis for her knowledge of what the tax preparer received. Defense counsel did not object to this remark. In a later discussion outside of the jury’s presence, defense counsel did not mention, much less object to, the comment that is the basis for the argument on appeal. Thus, our review is for plain error. See id. Nonetheless, Ramsey’s argument fails even if the plain-error standard did not apply because there was no reasonable possibility that this testimony might have contributed to the conviction, and thus its admission, if error, was harmless. United States v. Santos, 589 F.3d 759, 762 (5th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 2365, 176 L.Ed.2d 573 (2010); United States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir.2008).
*499The Government did not rely on any statements made by the tax preparer in establishing any element of the offense. Although the Government recounted in its closing argument that the agent testified, “I met with the tax preparer and I looked at those work papers,” the Government made no reference to anything the tax preparer said. Cf. United States v. Tirado-Tirado, 563 F.3d 117, 126 (5th Cir.2009) (concluding that erroneous admission of videotaped deposition was not harmless where the Government relied on the testimony to establish an element of the offense); Alvarado-Valdez, 521 F.3d at 341 (concluding that the erroneous admission of testimony was not harmless because the Government heavily relied on it during closing argument). Moreover, the other evidence, unrelated to the tax preparer’s statement, including evidence that Ramsey failed to disclose bank accounts from the Government and his bookkeepers, that he underreported his income by hundreds of thousands of dollars, and that he provided his tax preparer incomplete information about his income, was more than sufficient to convict Ramsey. In this context, a single vague reference (which was invited by the defense counsel’s questioning) that the tax preparer confirmed Ramsey’s description of the general types of documents that Ramsey provided to the tax preparer could not have contributed to the jury’s verdict.
Ramsey next argues that the IRS’s civil investigation -violated his right against self-incrimination, alleging without citation to the record that IRS agents improperly met with his tax preparer without notifying Ramsey, persuaded the tax preparer to turn over evidence, and threatened the tax preparer with prosecution if he failed to cooperate. Ramsey, however, does not point to any trial errors that resulted from the investigation. Because Ramsey does not support his argument with citations to the record or relevant law, he has failed to brief it adequately, and thus we decline to consider it. See United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir.2009); United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir.2009).
Finally, Ramsey challenges the indictment, arguing for the first time that it did not vest the district court with jurisdiction because, he asserts, it was not returned in open court as Fed. R. Crim. P. 6(f) requires. Though he contends that the “the records and files clearly demonstrate” that the indictment was not returned in open court, he offers no citation to the record to support this assertion. Unsupported allegations are inadequate bases for an argument on appeal; thus, Ramsey has abandoned the issue of the sufficiency of the indictment. See United States v. Cothran, 302 F.3d 279, 286 n. 7 (5th Cir.2002); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990).
The judgment of the district court is AFFIRMED. Ramsey’s motion for reconsideration and to supplement the record is DENIED.
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.
. "Q: The truth is you don't know what information Mr. Fulgham [Ramsey’s now-deceased tax preparer] had when he prepared those tax returns in 2000? A: I know what Dr. Ramsey told me he had, sir. Q: You know what part of the information he had. You don't know what all information Mr. Fulgham had when he prepared the returns, do you? A: I know what Dr. Ramsey told me that he provided to him. Q: Please answer the question. A: I thought that I was. Q: I want a yes or no answer. Do you know what Mr. Fulgham had when he prepared the return? A: "I know what Dr. Ramsey told me he had. Mr. Winfred Fulgham was there. And he agreed that that was what he was provided also...." The last sentence is the challenged testimony. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480076/ | PATRICK J. DUGGAN, District Judge.
This matter was submitted to the panel on briefs on March 30, 2010, with arguments addressing the merits of the underlying order of the National Labor Relations Board (“the Board”). On June 17, 2010, however, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, — U.S. --, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010), holding that the Board lacks authorization to act when it has fewer than three current members. There is no dispute that the underlying order in this case was issued at a time when there were only two members on the Board.1 In light of the Supreme Court’s decision in New Process Steel, we sua sponte REMAND for proceedings consistent with that opinion.
. A member of the Board's General Counsel contacted the Clerk’s Office on June 21, 2010, indicating the Board's intent to file motions to remand in all cases pending before the Court affected by the New Process Steel decision, including this one. The motion, however, has not yet been filed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480078/ | Order
Our opinion in this appeal, 600 F.3d 791 (7th Cir.2010), concluded that Billian’s conviction is valid but, after identifying an error in the Guidelines calculation, ordered a limited remand “so that the district judge can tell us whether the error in converting pounds to kilograms affected the exercise of discretion in sentencing. If the judge answers yes, we will remand for a full resentencing; if the judge answers no, we will affirm Billian’s sentence.” The district judge has informed us that the error did affect Billian’s sentence. There*539fore, although Billian’s conviction is affirmed, his sentence is now vacated, and the case is remanded for resentencing. The mandate will issue immediately. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480080/ | ORDER
Tony Harris was charged with six bank robberies and pleaded guilty to three of them. See 18 U.S.C. § 2113(a). The district court calculated a guidelines imprisonment range of 188 to 235 months and sentenced Harris to a total of 161 months, but we granted the parties’ joint motion for remand based on a one-level overstatement in Harris’s total offense level. United States v. Harris, No. 08-1015 (7th Cir. Nov. 19, 2008) (unpublished order). The district court again sentenced him to 161 months’ imprisonment, which is still below the recalculated range of 168 to 210 months. Harris filed a notice of appeal, but his appointed counsel cannot find a nonfrivolous issue to pursue and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Harris did not respond to counsel’s submission. See Cir. R. 51(b). We consider only the potential issues raised in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Initially, counsel notes that Harris wants to contest guidelines adjustments made at his first sentencing hearing but not raised at resentencing. Counsel concludes, however, that Harris would be *553foreclosed from raising these challenges in this appeal. We agree. In his first appeal, Harris and the government moved for a joint remand for resentencing based on a single error in the calculation of Harris’s offense level but mentioned no other possible issue for review. In their motion the parties were explicit that “the mandate should state that the scope of the remand is limited to resentencing based on the correct advisory guideline range,” which we were told was 168 to 210 months, exactly as the district court found on remand. Moreover, Harris did not challenge the application of the guidelines at resentenc-ing. Harris thus waived any other issue that could have been raised in the first appeal. See United States v. Sumner, 325 F.3d 884, 891-92 (7th Cir.2003); United States v. Jackson, 186 F.3d 836, 838 (7th Cir.1999); cf. United States v. Schroeder, 536 F.3d 746, 751-52 (7th Cir.2008) (allowing appellate review of issues raised and considered on resentencing after joint motion for remand even though not raised in first appeal).
Counsel next considers whether Harris could argue that his prison sentence is unreasonable. But his below-range sentence is presumed to be reasonable, United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010), so Harris would have to show that the district court did not properly consider his asserted mitigating factors, United States v. Singleton, 588 F.3d 497, 500-01 (7th Cir.2009). This he could not do. First, the district court disagreed that Harris’s criminal history category overrepresented his prior convictions. At the first sentencing hearing, the court had listed multiple convictions going back decades that did not count towards Harris’s criminal history score, and again at the second hearing the court cited Harris’s criminal history as a justification for the sentence. The court also disagreed with Harris’s optimistic self-assessment of his chances for rehabilitation. Harris argued that his exemplary postsentencing behavior showed great rehabilitative potential, but the court was more focused on his efforts at resentencing to minimize the seriousness of his crimes. The court nonetheless did consider in mitigation Harris’s lesser culpability in relation to his codefen-dants by giving him a below-guidelines sentence. And finally, although the court did not mention Harris’s argument that the poor conditions during his pretrial detention at the Kankakee County Jail warranted an even lesser sentence, we have held that conditions like the ones Harris complained of — less contact with family, lack of access to the law library, and occasionally overflowing toilets — -are not relevant to the factors in 18 U.S.C. § 3553(a) and thus do not warrant sentencing consideration. See United States v. Turner, 569 F.3d 637, 642 (7th Cir.), cert. denied, — U.S. -, 130 S.Ct. 654, 175 L.Ed.2d 499 (2009); United States v. Campos, 541 F.3d 735, 751 (7th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 955, 173 L.Ed.2d 150 (2009); United States v. Ramirez-Gutierrez, 503 F.3d 643, 645-46 (7th Cir.2007). The court, therefore, adequately considered all of Harris’s arguments, foreclosing any possible challenge to the reasonableness of the sentence.
Accordingly, we GRANT counsel’s motion and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480081/ | ORDER
David Wilson pleaded guilty to conspiring to distribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). At sentencing Wilson conceded that he was a career offender, and the district court calculated his advisory guidelines range as 262 to 327 months. Because of his substantial assistance, the government asked the court to sentence Wilson to 215 months, 15% below the low end of this range. The district court decided to be more generous and sentenced Wilson to 200 months, but Wilson argues here that reversible error occurred nonetheless. In his view, the sentence must be set aside both because the court strayed too far beyond the record during the hear*555ing and because it failed to give sufficient consideration to his bid for an even lower sentence. While we are troubled by some of the remarks that the court made, we are convinced by the record as a whole that they did not affect the sentence, and we therefore affirm.
From at least 2005 through 2008, Wilson conspired with several others, including members of a local Vice Lords affiliate, to distribute crack, powder cocaine, and marijuana in Milwaukee, Wisconsin. After a warrant was issued for his arrest, Wilson turned himself in and began cooperating with investigators. Later, Wilson pleaded guilty and stipulated that the provable drug quantity equaled at least 50 grams of crack or 5 kilograms of powder cocaine, either of which was enough to trigger a statutory penalty of 10 years to life. See 21 U.S.C. § 841(b)(1)(A)(ii), (A)(iii). Wilson had been convicted twice before for felony drug offenses, but the government did not file an enhancement information that would have made a life sentence mandatory. See 21 U.S.C. §§ 841(b)(1)(A), 851. Nonetheless, his prior drug convictions qualified him as a career offender, see U.S.S.G. § 4B1.1. After receiving credit for acceptance of responsibility, see id. § 3E1.1, Wilson had a final advisory guidelines range of 262 to 327 months.
At sentencing the government proposed a reduction to 215 months to reward Wilson’s substantial assistance. Wilson thought that a steeper discount was appropriate and urged the district court to go all the way down to the 120-month statutory minimum. Relying on United States v. Knox, 573 F.3d 441 (7th Cir.2009), Wilson argued that a nonguidelines sentence was appropriate in any event because Congress had not directed the Sentencing Commission to include § 846 conspiracies within the class of crimes encompassed by the career-offender guideline, as it had done for other drug offenses. Wilson also highlighted several aspects of his character and criminal history that he contended warranted a prison term significantly below the guidelines range. For example, Wilson pointed out that the convictions that triggered his career-offender designation involved small amounts of drugs (2.4 grams of crack and 94 grams of powder) and occurred seven and 14 years before the start of the conspiracy in this case. He asserted that he posed a lower risk of recidivism because he was already 41 years old, and studies show that recidivism rates decline with the increasing age of the offender. Wilson added several other points: his IQ of 78 places him in the borderline mentally retarded range; he has suffered from drug addiction for most of his adolescent and adult life; and he experienced a tumultuous childhood, including the death of his father, when he was young.
The district court settled on a term of 200 months. It gave a “modest” amount of weight to Wilson’s argument that he should get less time because of the age of the prior convictions that triggered his career-offender status. But that was all. The court noted that Wilson had been convicted in state court of robbing a bank, had been put on probation, and had quickly acquired another conviction for burglary. Indeed, the court observed, Wilson had never successfully completed a term of probation or parole, and while on supervision he had committed other crimes that resulted in revocations but no further prosecution. His criminal history included 35 traffic violations. The district court rejected the notion that Wilson’s borderline IQ warranted a shorter prison term and noted that a low IQ had not prevented him from driving, fathering children, working on his high school equivalency diploma, or presenting himself well in court. In his previous interactions with the criminal jus*556tice system, the district court continued, Wilson’s low IQ apparently encouraged leniency from sentencing judges. Rather than take advantage of this indulgence, however, Wilson had rejected opportunities to work and continued to flout the law. As we discuss in more detail below, the district judge also spent some time discoursing on the local, national, and international implications of the drug trade, including how the once-stable Milwaukee neighborhood where the judge himself grew up was now at the center of the drug trafficking in this case.
On appeal, Wilson contends that the district court’s sentencing decision was procedurally and substantively unreasonable, He concedes that his guidelines range was properly calculated, but he argues that the district court erred by treating the range as presumptively reasonable and by ignoring his argument that a career offender convicted only of conspiracy need not be sentenced at or near the statutory maximum. He also urges that the district court procedurally erred by failing to apply the sentencing factors listed in 18 U.S.C. § 3558(a). Finally, he asks us to find that his 200-month sentence is substantively unreasonable.
We begin our review of a sentence by ensuring that the sentencing judge committed no serious procedural error “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see United States v. Jackson, 547 F.3d 786, 792 (7th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 1538, 173 L.Ed.2d 666 (2009). In its consideration of the statutory factors, a district court may not pass over in silence arguments that “are not so weak as to not merit discussion.” United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). The court need not, however, dwell on a routine argument that is not developed. See United States v. Pulley, 601 F.3d 660, 667 (7th Cir.2010); United States v. Young, 590 F.3d 467, 474 (7th Cir.2009).
The district court’s consideration of the statutory sentencing factors touched all the important points. The court acknowledged Wilson’s personal characteristics, see 18 U.S.C. § 3553(a)(1), recognizing his borderline mental retardation. It was simply not persuaded that his low IQ was a reason for less incarceration. The court noted that the “system” had “done its duty” by demonstrating leniency in the past, but Wilson had responded by committing more crimes instead of seizing the chance to turn his life around. As the court put it, “You can’t expect the citizens to do much more when someone doesn’t do it themselves. And everybody is responsible for their own behavior regardless if they’re a 78 IQ.” The court summed up Wilson’s argument somewhat insensitively: “[G]ive him a break, Judge, because he’s not hitting on all cylinders.”
The district court also addressed the nature and circumstances of the offense, along with the need to protect the public from further crimes. See 18 U.S.C. § 3553(a)(1), (2). It was particularly concerned with the way that Wilson’s crimes and others like them had affected the community, Indeed, its commentary on the state, national, and international drug trade spans several pages in the sentencing transcript. The court noted that President Obama has visited only one country twice, and that country is Mexico; it speculated that the reason for this attention is *557the fact that 80 percent of the cocaine that enters the United States comes through Mexico. The court bemoaned the chaos in El Paso, Texas; it mentioned Colombia and its problems with the revolutionary FARC group; and, returning to the topic of Mexico, it expressed the opinion that Mexico is in danger of becoming a “narco-state.” In addition to these more global thoughts, the court personalized Wilson’s crime. After observing that drug trafficking ravages communities and inspires other crimes as addicts seek money for drugs, the court commented on the location of Wilson’s criminal activity: “This area is particularly poignant to the Court because that’s the neighborhood I grew up in.” The court then tied together its concerns by pointing out that drug trafficking has an impact far outside any particular neighborhood: “And every tune you deal drugs on First and Keefe or 43rd and Fiebrantz or 12th and National ... that has created an atmosphere in Juarez, Mexico, for instance, right across the border from El Paso.”
This digression is troublesome in at least two ways: first, because it ranges so far from any evidence that was properly in the sentencing record, and second, for the way in which it can be understood as a personal grudge that the judge bore against Wilson for dealing drugs in his old neighborhood. But it would be a mistake to take that one passage in isolation. Taken as a whole, the sentencing transcript demonstrates that the court based its sentence on considerations authorized by the law, including the nature of Wilson’s previous criminal activity and the need for the sentence to promote respect for the law. See 18 U.S.C. § 3553(a)(2)(A). Apart from Wilson’s drug trafficking convictions, his criminal history includes convictions for bank robbery, burglary, drug possession, theft, and 35 traffic violations. When reviewing this criminal history, the court agreed with Wilson that he deserved a modest break because the convictions that triggering his career-offender designation were old: “[Gjiven your employment record and given the fact that there are arrests in between with possession of controlled substance and no prosecution, it indicates to the Court that this type of activity was still going on.”
At the time he filed his brief, Wilson’s best argument was that the court erred by not addressing his argument based on Knox. Wilson conceded at sentencing that he was a career offender, and he does not challenge that designation here. His argument is that even though Congress directed the Sentencing Commission to write the guidelines so that certain drug crimes would yield an imprisonment range at or near the statutory maximum, see 28 U.S.C. § 994(h), conspiracy under § 846 was not among the offenses that the Commission had no choice but to include in the career-offender guideline. It does not help him now, however, for several reasons. First, Knox arose from the different treatment of crack and powder cocaine in the guidelines, but that distinction was never relevant to Wilson because he conceded that the government could prove his involvement in amounts of either crack or powder that independently would trigger the possibility of a life sentence. Second, the precise holding of Knox is no longer significant in this circuit. In Knox this court recognized that because Congress did not require the Sentencing Commission to write guidelines advising a sentence at or near the statutory maximum for drug conspiracy offenses, a district court may disagree on policy grounds with the career offender guideline for that class of defendants, 573 F.3d at 449-50, even though we thought that was not the case for the underlying drug crimes, see United States v. Welton, 583 F.3d 494, 499 (7th Cir.2009), *558vacated, — U.S. -, 130 S.Ct. 2061, 176 L.Ed.2d 411 (2010).
Earlier this year, however, we overruled Welton and adopted the unanimous view of other circuits that all sentencing guidelines can be rejected on policy grounds, even those like § 4B1.1 that are driven by congressional action. United States v. Corner, 598 F.3d 411, 415 (7th Cir.2010) (en banc). That Congress required the Sentencing, Commission to craft a guidelines for certain career offenders does not make the resulting guideline mandatory: “Because § 4B1.1 is just a Guideline, judges are as free to disagree with it as they are with § 2Dl.l(c) (which sets the crack/powder ratio). No judge is required to sentence at variance with a Guideline, but every judge is at liberty to do so.” Id. at 416.
Although the district court did not explicitly refer to Wilson’s argument based on Knox, nothing in the record supports the idea that the district court believed the guideline range was mandatory. In fact, the very opinion that Wilson accuses the judge of ignoring was obviously known to the judge because Wilson brought the case to the court’s attention. Moreover, the district court’s willingness to sentence Wilson below the guidelines range provides conclusive evidence that the court recognized it possessed the discretion to sentence outside the career-offender range.
Wilson’s argument that his sentence is substantively unreasonable fares no better. A sentence within a properly calculated guidelines range is presumed reasonable, Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Cano-Rodriguez, 552 F.3d 637, 639 (7th Cir.2009), and thus a below-guidelines sentence is also presumed reasonable, United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010); United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008). Although Wilson continues to urge that even 200 months is unreasonable, his only support for this contention comes from cases where this court upheld a below-range sentence over a challenge from the government. That a significantly below-range sentence might be reasonable in a particular case does not compel the conclusion that a higher sentence in a different case — or even the same case — would be unreasonable. Reasonableness of a sentence contemplates a range, not a point, United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009), and Wilson presents no evidence that his imprisonment term was outside the permissible range of choices.
After reviewing the record as a whole, we find no reversible error in the district court’s sentencing decision. We therefore Affirm its judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480082/ | ORDER
Ayaz Ahmed styles this petition for review as a challenge to the Board of Immigration Appeals’s denial of his motion to reopen, but his briefs focus exclusively on the merits of the underlying order of removal, entered ten months earlier. Ahmed filed his petition far too late to challenge the removal order, which this court lacks jurisdiction to review. And since Ahmed has not argued that the Board erred in denying his motion to reopen, we deny the petition for review.
Ahmed is a citizen of Pakistan who entered the United States in 1999 and overstayed his visa. He came to the government’s attention in 2003 when he tried to register for the National Security Entry-Exit Registration System, and shortly thereafter he was charged as being removable under 8 U.S.C. § 1227(a)(1)(B). He admitted removability but feared harm based on his political opinion; this prompted him to seek withholding of removal and protection under the Convention Against Torture. Ahmed asserted that he was a member of one faction of the Mohajir Qua-mi Movement (MQM) and was persecuted by another faction, the Haqiqi Mohajir Quami Movement (MQM-H). Most significantly, Ahmed said that in 1997 members of the MQM-H kidnapped and assaulted him, and made him promise to join their ranks. The Immigration Judge found Ahmed’s testimony not credible and unsupported by documentary evidence, and denied his claims. The Board agreed and dismissed the appeal on November 6, 2008. Ahmed’s counsel did not petition for review.
*560Five months later, with a different lawyer, Ahmed moved to reopen his case. He had missed the 90-day deadline, but he invoked the exception for changed country conditions. See 8 C.F.R. § 1003.2(c)(2), (c)(3)(h). The Board found not only that he failed to supplement his motion with the appropriate documentation, see 8 C.F.R. § 1003.2(c)(1), but also that he failed to demonstrate changed country conditions. The Board noted that two letters he submitted from his friends in Pakistan were too vague, and a letter from his brother was the same letter he had submitted in the underlying proceeding. Ahmed petitioned for review.
Ahmed suggests that a timely petition from any Board order gives the court jurisdiction to review all of the proceedings up to that point, but his argument lacks merit. If Ahmed wished to seek judicial review of the Board’s original removal order, his petition was due within 30 days. See 8 U.S.C. § 1252(b)(1). But he did not file this petition until ten months later. Because the time period to obtain judicial review of the removal order is jurisdictional, no excuse is available. See Stone v. I.N.S., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Ajose v. Gonzales, 408 F.3d 393, 394-95 (7th Cir.2005). Even a timely motion to reconsider does not toll the time to seek review of the removal order, Stone, 514 U.S. at 405, 115 S.Ct. 1537; Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir.2006), much less an untimely motion to reopen.
Although the court does have jurisdiction to review the denial of his motion to reopen, see Kucana v. Holder, — U.S. -, 130 S.Ct. 827, 840, — L.Ed.2d - (2010), Ahmed mounts no meaningful challenge to that order. He acknowledges it in the jurisdictional statement of his brief, but adds nothing further. Instead, he devotes his briefs to arguing the merits of the underlying removal order, challenging the Board’s determinations that he was not credible and that he did not show past or future persecution. He has attempted to justify that strategy by maintaining that Board, by discussing the removal order, thereby invited full review on the merits. But the Board did no such thing; it simply recounted the history of the case as a prelude to its decision not to reopen the petition. Because Ahmed has not offered even a hint as to why he thinks the Board erred in denying his motion to reopen, we agx-ee with the government that he has waived the argument. See Asere, 439 F.3d at 380-81; Brucaj v. Ashcroft, 381 F.3d 602, 611 n. 7 (7th Cir.2004).
Given that Ahmed has not challenged the only decision this couxt has jurisdiction to review, we Deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480084/ | SUMMARY ORDER
Debtor-Appellant appeals from the March 28, 2006 Memorandum and Order of the United States District Court for the Eastern District of New York (Trager, J.) denying his application for a stay during the pendency of his appeal of an order of the bankruptcy court lifting an automatic stay pursuant to 11 U.S.C. § 362(d). We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.
This Court has already dismissed Appellant’s appeal of the district court’s order affirming the bankruptcy court’s orders lifting the automatic stay and dismissing with prejudice Appellant’s petition for relief under Chapter 13 of Title 11 of the Bankruptcy Code. In Re: Kevin Watkins, No. 07-1202-bk (2d Cir. June 19, 2007) (order dismissing appeal due to Petitioner’s failure to pay filing fee). Because Appellant here seeks a stay pending the decision of matters already decided, his appeal is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480085/ | ORDER
Robert Wagner was a pilot for American Airlines. For almost ten years he was covered by a long-term disability plan offered by the Allied Pilots Association; unfortunately, in 2004 he terminated his policy and in 2005 re-enrolled. This meant that he was now subject to all of the plan’s limitations and exclusions. Three months after re-enrolling Wagner ceased flying; almost a year later he applied for benefits, claiming he had a rare inner-ear disorder that caused him to experience dizziness and migraines. The plan administrator rejected his claim on several bases, including, and pertinent here, that he was disabled within six months of the policy’s effective date and the disability was not due to an injury after that date. Wagner then filed suit against the Disability Plan (“Plan”) and the district court granted summary judgment in its favor. It found that the plan administrator did not abuse its discretion when it refused to re-open Wagner’s claim and that it did not abuse its discretion when it denied him coverage under the plan. He now appeals. Because the plan administrator offered a reasoned basis, supported by the record, for denying Wagner’s claim, we affirm.
I.
Robert Wagner was a commercial airline pilot for American Airlines, and beginning in 1996 he was enrolled in the Allied Pilots Association’s disability income plan. For a reason not reflected in the record he terminated his policy in 2004; the following year he re-enrolled with an effective date of April 1, 2005. By re-enrolling, Wagner’s participation in the plan was subject to all the exclusions applicable to new en-rollees. The disability plan excluded coverage for disabilities that occurred within six months of the enrollment date, unless the disability arose from an injury occurring after the effective date of coverage.1
*567For many years, Wagner experienced problems related to his sinuses and ears. And in 1996, he began seeing Dr. Stephen Yeh, an otolaryngologist — better known as an ear, nose, and throat doctor. At times the problems were severe, causing Wagner to suffer migraine headaches, dizziness, and sinusitis. Over the years, Dr. Yeh prescribed many different methods of treatment, including surgery in 1999.
On July 20, 2005, at Wagner’s appointment with Dr. Yeh, they discussed the possibility of revision surgery to address his persistent problems. Yeh’s notes also reflect that Wagner complained of “headaches and the effect of flying on his headache and feeling of disequilibrium with headaches.” The doctor’s notes mention that these may have been migraines, but he did not diagnose them as such.
The next day, on July 21, Wagner was landing a plane and noticed a problem that he later described as incapacitating disequilibrium. He assumed it would go away on its own, but it didn’t. Since that day Wagner has not flown a commercial airplane. In August he again saw Dr. Yeh and again complained of disequilibrium and fullness in his ears. At this time, Wagner opted for further surgery to address these problems.
Several months after the surgery Wagner consulted another specialist, Dr. Timothy Hain, who diagnosed him with peri-lymph fístula, bilateral hydrops, and sinus headaches. The diagnosis of a perilymph fístula is at the center of this case. A perilymph fistula is a small abnormal opening between the air-filled middle ear and fluid-filled inner ear. These openings or tears are most commonly caused by barotrauma — pressure injuries, which often occur during scuba diving or following an airplane’s descent during landing. These tears cause dizziness, unsteadiness, and a rush of symptoms when there is a pressure change, which can be as simple as a person blowing his nose. In other words, a perilymph fistula is debilitating for any person but especially a pilot.
After seeing Dr. Hain in December 2005, Wagner again saw Dr. Yeh, still complaining of dizziness. The notes from that visit indicate that the surgery went well, and Dr. Yeh regarded Dr. Hain’s diagnosis of perilymph fistula as “unusual.” During a follow-up visit the next month, Dr. Yeh noted that Wagner’s sinusitis had improved and that it “was unclear whether his dizziness is a primary condition or related to his sinusitis or migraines.” He also noted that “[i]n any case his sinusitis and headache and disequilibrium issues appear to be environmentally related. [Wagner] connects these symptoms with long airplane flights and nasal dryness.”
On May 10, 2006, Wagner filed a claim for benefits under the long term disability plan. He claimed that he was disabled due ■ to “chronic sinusitis, migraines and dizziness.” His claim was denied. He then appealed, and in support submitted a letter from Dr. Hain that stated Wagner’s disability was a perilymph fistula. Because Wagner submitted information on his appeal suggesting a different disabling condition, the plan administrator treated the perilymph fistula diagnosis as a second claim, rather than an appeal. After gathering information from Wagner and his doctors about the perilymph fistula, the plan administrator denied the second claim because the disability occurred within six months of the plan’s effective date of coverage (April 1, 2005) and was not the result of an injury occurring after that date.
*568Wagner appealed both decisions to the Plan’s Benefits Review and Appeals Board (“Board”). In support of his appeal, he submitted two letters from Dr. Hain concerning his perilymph fistula. Wagner also produced a letter from MetLife rejecting his claim for benefits under a different disability plan because his injury was work related. After reviewing this information, the Plan requested medical records from Wagner concerning the date of his injury and a list of all the doctors who had treated him for the condition. Wagner stated that he first noticed the problem on July 21, 2005. The plan administrator also asked Dr. Hain for clarification of when the perilymph fistula occurred. Dr. Hain responded with Wagner’s records but nothing that stated or suggested a date of injury. In his notes, Dr. Hain merely noted that Wagner has “had ample exposure to pressure changes in the course of [his] career.” Dr. Yeh also submitted a letter stating that his first notation about perilymph fistula was on December 13, 2005. Nothing was provided concerning the specific date of Wagner’s injury. For the perilymph fistula to be covered, it has to have occurred after the effective date of coverage — April 1, 2005.
The Plan then submitted Wagner’s appeal and records for review to an independent medical doctor, Dr. Antonelli. In her report, Dr. Antonelli noted that the documentation provided did not indicate that a specific traumatic event had occurred. She also discussed what a difficult diagnosis perilymph fistula is to make and that the records do not show how long Wagner has had it. That evaluation was forwarded with the rest of Wagner’s information to the Roard, which denied his appeal.
In the statement of reasons for denying the appeal, the Board stated that “[n]o medical evidence was presented that conclusively showed the perilymph fistula occurred on July 21, 2005. In fact, medical records show that you had symptoms consistent with perilymph fistula prior to July 2005.” Therefore, it found that his claim fell under the exclusion for disabilities that occurred in the first six months of the policy and was not due to an injury after the effective date. It was on that basis that they denied his claim.
Almost a year later, Wagner hired an attorney and sought to re-open the claim in order to provide a response to Dr. Anto-nelli’s report. Attached to the request was a letter from Dr. Owen Black rebutting much of what Dr. Antonelli’s report contained and another letter from Dr. Hain stating: “[m]y opinion is that it is more likely than not that Captain Wagner’s fistula occurred, in July 2005, rather than in 2001.”
The plan provides a 180-day window for appeals of a claim’s denial and only materials received during that time will be considered. The plan also states that “[t]here will be no exception to this rule.” Citing that language, the plan administrator rejected Wagner’s request to re-open his claim. He then sued the Plan under Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974, (“ERISA”) 29 U.S.C. § 1132(a)(1)(B).
The district court considered cross-motions for summary judgment on whether the plan administrator abused its discretion by failing to re-open the claim and granted summary judgment for the Plan, finding that it was not arbitrary and capricious for the plan administrator to follow the deadlines set forth in the plan’s language. The Plan filed a second motion for summary judgment on whether the plan administrator’s denial of Wagner’s claim was arbitrary and capricious. After considering the motions, the district court granted summary judgment for the Plan, finding that the record supported the denial of Wagner’s claim for disabilities because his disability occurred within six *569months of the policy’s effective date and was not due to injury during that time.2
II.
We review the district court’s grant of summary judgment de novo, meaning we review the the “plan administrator’s determination directly.” Jenkins v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 860 (7th Cir.2009). Summary judgment is appropriate when “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). Where, as here, the plan gives the administrator “discretion to determine who is eligible for benefits, we review its decision under the arbitrary and capricious standard.” Jenkins, 564 F.3d at 860-61. Under that standard, we look to ensure that the administrator’s decision “has rational support in the record.” Id. at 861 (quotation omitted). In other words, we will uphold the decision as long as the administrator offers “a reasoned explanation, based on the evidence, plan documents, and relevant factors that encompass the important aspects of the problem.” Fischer v. Liberty Life Assur. Co. of Boston, 576 F.3d 369, 376 (7th Cir.2009). And when, as here, we review cross-motions for summary judgment, “we construe all inferences in favor of the party against whom the motion under consideration is made.” Speciale v. Blue Cross & Blue Shield Ass’n, 538 F.3d 615, 621 (7th Cir.2008) (quotation omitted).
III.
A.
On appeal, Wagner first argues that the plan administrator should have reopened his claim and reconsidered its decision in light of new evidence. Eleven months after the plan administrator denied the appeal Wagner sought to re-open the claim and submit additional material on his disability. It denied the request, citing the plan’s plain language that participants must provide any documents, records, or materials to support his claim within “180 days after the Plan Participant receives notice of the adverse benefit determination. Any request for review received by the [Plan] after this 180-day period will be null and void.” This language is echoed elsewhere in the plan, where it states that “only Appeal Materials received by the [Plan] prior to the end of 180-day period will be considered. There will be no exception to this rule.”
We have previously held that in most eases “unambiguous terms of a pension plan leave no room for the exercise of interpretive discretion by the plan’s administrator.” Call v. Ameritech Mgmt. Pension Plan, 475 F.3d 816, 822-23 (7th Cir.2007). The administrator must implement and follow the plain language of the plan, in so much as they are consistent with the statute. 29 U.S.C. § 1104(a)(1)(D). This includes a deadline that is consistent with the regulations governing ERISA claims. 29 C.F.R. § 2560.503-1(h)(3)(i) (benefit plan must “[p]rovide claimants at least 180 days following receipt of a notification of an adverse benefit determination within which to appeal the determination”). And by imposing this deadline on Wagner’s appeal, the plan administrator did not act arbitrarily. Speciale, 538 F.3d at 623; Tegtmeier v. Midwest Operating Engineers *570Pen. Trust Fund, 390 F.3d 1040, 1047 (7th Cir.2004) (applying deadlines is proper given the plan’s need “for finality of decisions”). Thus, the plan administrator did not act arbitrarily and capriciously in enforcing the plan’s clearly established deadlines and denying Wagner’s request to reopen the claim.3
B.
Wagner also appeals the plan administrator’s decision to deny him benefits. Again, our review of the plan administrator’s decision is extremely deferential: all we require is “a reasoned explanation, based on the evidence, plan documents, and relevant factors that encompass the important aspects of the problem.” Fischer, 576 F.3d at 376. The issue of whether we would have “reached the same conclusion is irrelevant; we will overturn the fiduciary’s denial of benefits only if it is completely unreasonable.” Hess v. Reg-Ellen Machine Tool Corp., 423 F.3d 653, 659 (7th Cir.2005) (citation and internal quotations omitted). Wagner argues that the plan administrator wrongfully denied him benefits because his perilymph fistula was caused by an injury on July 21, 2005. Under the policy a disability that arises within six months of the policy’s effective date is excluded from coverage, unless it is from an injury that also occurred after the policy’s effective date.
Wagner likely has a perilymph fistula and is disabled, even Dr. Antonelli stated as much. The problem is that it’s unclear when the perilymph fistula occurred and whether it was an injury after the effective date of the policy. The Board’s decision was based on a lack of evidence submitted by Wagner. To its credit, the plan administrator repeatedly tried to determine the precise date of Wagner’s injury and specifically requested medical records from Wagner and his doctors that supplied some evidence of the date of the injury. But nothing was produced. Dr. Hain merely stated that Wagner had “ample exposure to pressure changes in the course of his career.” And even after the plan administrator specifically requested a date of injury from Dr. Hain, he did not provide one. Dr. Yeh’s records also don’t provide any evidence of an injury. He was, in fact, indecisive about whether a perilymph fistula was the precise problem.
The only evidence of an injury occurring is in the brief statements that Wagner submitted. In them he states that he felt different during that last flight on July 21, 2005, and “didn’t know what happened.” In the second statement, Wagner vaguely stated
the first time I noticed this problem was the day I last flew an airplane for American Airlines (July 21, 2005). At that time, I had absolutely no idea what had happened to me to cause this, nor what the exact problem was. I thought that perhaps it would go away on its own. However, this problem never went away. It was not until I consulted Dr. Hain that I was told what the cause of my dizziness was.
Wagner previously described “the problem” as incapacitating disequilibrium.
From the little we can glean from the medical records and reports of perilymph *571fístula in the record, it is a severe condition. It is difficult to diagnose, but its symptoms are dizziness and headaches. The symptoms that Wagner said he experienced on that last plane flight are nondescript: it is also not clear how this disequilibrium was different from the disequilibrium he experienced and reported to Dr. Yeh the day before his last flight. There is also nothing in Dr. Yeh’s notes during the next appointment, three weeks after that flight, that mentions this constant, debilitating equilibrium. And nothing in the records suggests that the headache or dizziness that he experienced on that last flight were the product of a perilymph fístula injury during that descent or from a descent months earlier or that the perilymph fístula occurred in a different manner at some other time before the plan’s effective date. In short, there is nothing in the record to support the conclusion that Wagner had an injury during the first six months of the policy’s effective date.
It is clear that Wagner had a disability onset during the first six months of the policy’s effective date. But the only thing in the record that suggests that Wagner also suffered an injury during that time is his vague statement about “something different” during the descent on July 21, 2005. And that statement does not carry sufficient weight to make the plan administrator’s decision arbitrary and capricious. Davis v. Unum Life Ins. Co. of America, 444 F.3d 569, 576-77 (7th Cir.2006) (“The judicial task here is not to determine if the administrator’s decision is correct, but only if it is reasonable.”).
IV.
We find that the Plan did not act arbitrarily and capriciously by denying Wagner’s request to re-open his claim after the deadline had passed. Similarly, given the deferential standard of review that we apply to these cases and the fact that the plan administrator considered all of the evidence and arrived at a reasonable conclusion, we find that the plan administrator did not act arbitrarily and capriciously when it rejected Wagner’s disability claim. Accordingly, the judgment of the district court is AFFIRMED.
. The pertinent language reads as follows:
(F) Any disability for which the date of Onset of Disability is within six months follow*567ing the Effective Date of coverage unless the Disability is due to an injury that occurs after the Effective Date of coverage.
. The plan administrator also denied Wagner's claim because he suffered from a preexisting condition. Wagner also appeals that decision. Because we find that the plan administrator's decision to reject his claim for a non-injury disability was not arbitrary and capricious, we do not need to reach whether the plan administrator abused its discretion in making its pre-existing condition determination.
. Upholding the Plan's decision to not reopen the claim has significant consequences for Wagner's appeal: the strongest evidence concerning his disability was submitted after the claim was closed. He submitted a letter from Dr. F. Owen Black that called into question many of the conclusions Dr. Antonelli made in her report. But we may consider only the "evidence that was before the administrator in deciding whether her decision passes muster.” Gutta v. Standard Select Trust Ins. Plans, 530 F.3d 614, 619 (7th Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480086/ | ORDER
At Davis Omole’s original sentencing hearing, the district court noted that Om-ole defrauded dozens of people out of approximately $90,000 as part of a sophisticated scheme. The court also commented on Omole’s arrogance and lack of empathy. Later, however, the court commented on Omole’s young age and its belief that time spent in prison would short-circuit the potential that Omole had to reform himself. The court then sentenced Omole to 36 months’ imprisonment — 12 months on a wire fraud count and the mandatory 24 months on an aggravated identity theft count — a sentence significantly below the recommended guideline range of 87 to 102 months’ imprisonment.
The government appealed the sentence, and we reversed and remanded for resen-tencing because
we are left with widely divergent and seemingly irreconcilable pictures of this defendant....
We are not saying that any below-guidelines sentence for Davis would have been unreasonable. However, based on the sentencing transcript and the clearly disparaging comments the judge made about Davis, we find that the district court abused its discretion by imposing the 12-month sentence....
United States v. Omole, 523 F.3d 691, 700 (7th Cir.2008) (citation omitted).
On remand, the district court said that it had made the “disparaging” comments about Omole in an effort to scare him straight and that it still believed “that in terms of the punishment, the need and hope for rehabilitation, and in terms of prevention of future misconduct, ... the sentence of imprisonment for this defendant at that time was appropriate.” (App. at 20.) However, the court felt constrained by our remand opinion to give Omole “a sentence which is stiffer than what [it] felt was appropriate based upon the language that [the district court] used.” (App. at 24-25.) The court then imposed a sentence of 63 months’ imprisonment, a sentence at the lowest end of the guidelines range for the wire fraud count.
Omole appealed, arguing that the district court misread our remand opinion and improperly assumed that it was constrained to impose a sentence that the *573district court felt was unreasonable. The government argues that there is sufficient evidence in the record to sustain Omole’s within-guidelines sentence.
We find that the district court’s second resentencing of Omole was — as the district court stated — unreasonable. The problem with Omole’s first sentence was that what the district court said did not square with what the district court did. Omole’s second sentence suffers from the same problem. The court explained its harsh comments and its rationale for imposing a lower sentence, but it sentenced Omole to a higher sentence even though the district court judge himself — as noted — said that the higher sentence was unreasonable.
We are again left with “widely divergent and seemingly irreconcilable pictures of this defendant.” The only justification that the district court appeared to give for the higher sentence was our remand opinion. But our opinion should not have been read to compel the district court to impose a guidelines sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (listing “treating the Guidelines as mandatory” and “failing to consider the § 3553(a) factors” as procedural errors that warrant vacating a sentence). We repeat, “[w]e are not saying that any below-guidelines sentence for Davis would have been unreasonable.” Omole, 523 F.3d at 700.
We again remand to the district court to resentence Omole. The district court should feel free to impose whatever sentence it feels is reasonable and appropriate. To determine an appropriate sentence, the district court should consider the factors in § 3553(a) and specifically identify those factors that apply to Omole, subject to our discussion of some of those factors in our remand opinion. The district court should also expressly indicate that it understands the guidelines are advisory only, and that it is not compelled to impose a sentence within the recommended range. Given the history of this case, the more explicit the district court can be, the better.
We Vacate Omole’s sentence and Remand for resentencing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480089/ | OPINION OF THE COURT
JORDAN, Circuit Judge.
Debtors Joseph and Christina Rocco (the “Roccos”) appeal from the order of the District Court for the Western District of Pennsylvania affirming the order of the Bankruptcy Court for the Western District of Pennsylvania, which granted the Motion for Relief from the Automatic Stay to Proceed with Eviction filed by J.P. Morgan Chase Bank (“J.P. Morgan”), a creditor of the Roccos. For the reasons that follow, we will affirm.
I.
The Roccos refinanced the mortgage on their residence in Latrobe, Pennsylvania on August 3, 2000, and defaulted on that mortgage in the fall of 2003. J.P. Morgan, the owner of the mortgage at the time of the default, got a foreclosure judgment against the Roccos in November of 2003. The Roccos filed their initial petition for bankruptcy under Chapter 13 of the Bankruptcy Code on January 2, 2004 to stop a foreclosure sale scheduled for January 5, 2004. That petition was dismissed on February 3, 2004, due to the Roccos’ failure to provide required information. A sheriffs sale took place in early March, 2004, at which J.P. Morgan purchased the property for one dollar. The Roccos did not dispute that, at the time of the foreclosure, they owed J.P. Morgan a total of approximately $137,490 in principal, interest, escrow, and fees, and that the property was worth approximately $137,500.1 J.P. Morgan recorded the deed in early April 2004, just before the Roccos filed their second Chapter 13 petition on April 13, 2004.
The Roccos filed an adversary complaint against J.P. Morgan and others on May 13, 2004, alleging that the sheriffs sale constituted a preferential and fraudulent transfer in violation of 11 U.S.C. § § 547 and 548,2 and alleging that their lender’s eon-*640duct at the time the mortgage was executed violated the Truth-in-Lending Act, 15 U.S.C. § 1601, et seq., and Pennsylvania’s Unfair Trade Practices Act, 73 Pa. Stat. 201-1, et seq., and constituted fraud and civil conspiracy. On May 18, 2004, J.P. Morgan filed its Motion for Relief from the Automatic Stay to Proceed with Eviction. The Roccos opposed that motion, arguing that the sheriffs sale was collusive, and that the claims they made in their adversary complaint should prevent the stay from being lifted.
The Bankruptcy Court granted J.P. Morgan’s motion, finding that the Roccos did not have standing to object to relief from the stay because J.P. Morgan’s purchase of the property and recording of the deed meant that they no longer had any legal or equitable interest in the property. The Bankruptcy Court also found that there was cause to lift the stay, and that J.P. Morgan lacked adequate protection. Furthermore, the Bankruptcy Court found that the sheriffs sale was not a preferential transfer. The Bankruptcy Court determined that the Roccos’ non-bankruptcy claims, including those under the Truth-in-Lending Act, could have been raised in the state foreclosure proceedings, and thus could not be raised in bankruptcy to avoid the non-collusive foreclosure sale. As a result, the Bankruptcy Court found that because the Roccos no longer possessed any interest in the property, they lacked standing to object to relief from the automatic stay, and that cause existed to lift the stay.
The District Court affirmed the Bankruptcy Court’s decision. The District Court found that there was cause for lifting the stay, and that J.P. Morgan lacked adequate protection. The Court also noted that the Roccos’ allegations about irregularities in their initial mortgage should have been brought and resolved in the state court foreclosure action, and that the foreclosure sale was not a preferential transfer.
II.
We have jurisdiction over this case under 28 U.S.C. § 158. We exercise plenary review over the District Court’s determinations, and “[i]n reviewing the bankruptcy court’s determinations, we exercise the same standard of review as the district court.” In re Trans World Airlines, Inc., 145 F.3d 124, 131 (3d Cir.1998). We review the Bankruptcy Court’s decision to lift the automatic stay for abuse of discretion. In re Myers, 491 F.3d 120, 128 (3d Cir.2007) (“Whether to annul the automatic stay is a decision committed to the bankruptcy court’s discretion, and may be reversed only for abuse of that discretion.”). “An abuse of discretion arises when the district court’s decision ‘rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.’ ” Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir.2000). We exercise plenary review over questions of law. Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 325 (3d Cir.2003).
The Roccos assert that the District Court abused its discretion when it lifted the automatic stay. They claim that there was no cause to lift the stay because the transfer of the property to J.P. Morgan at the sheriffs sale was a preferential transfer, and thus that the transfer could be avoided. They argue that, even though J.P. Morgan was owed an amount almost identical to the value of the house, the amount owed should be reduced because of the allegations in their adversary complaint, including the assertion that their lender committed Truth-in-Lending Act violations. The Roccos’ arguments are without merit.
*641A.
Under 11 U.S.C. § 362(d)(1), the automatic stay can be lifted “for cause, including the lack of adequate protection of an interest in property of such party in interest[.]” Here, J.P. Morgan had purchased the property at a sheriffs sale, and had recorded the deed to the property. It thus acquired the right to possess the property when the deed was executed and delivered. See Butler v. Lomas and Nettleton Co., 862 F.2d 1015, 1019 (3d Cir.1988) (the right to possession of property passes to a sheriffs sale purchaser when the sheriffs deed is executed and delivered). Despite J.P. Morgan’s right to the property, the Roccos continue living on the property without making any payments to J.P. Morgan.
The Roccos claim that their adversary proceeding offered J.P. Morgan adequate protection, because if the Roccos prevailed in that proceeding J.P. Morgan’s interest in the property would be reduced, the foreclosure sale would be avoided as a preference, and J.P. Morgan would not be entitled to lift the automatic stay. Even if the Roccos’ lawsuit did provide some protection to J.P. Morgan’s interests,3 however, bankruptcy courts in this Circuit have held that a lawsuit is too speculative in nature to offer adequate protection. See In re Turner, 326 B.R. 563, 577-78 (Bankr.W.D.Pa.2005) (“[L]itigation is highly speculative. It is uncertain when and at what pace the litigation will proceed and what the outcome will be.”); In re Ziegler, 88 B.R. 67, 70 (Bankr.E.D.Pa.1988) (“Debtor claims that the pending lawsuit adequately protects Hill’s interests. We hold that such a speculative funding source is insufficient to provide adequate protection.”). In general, and in this specific instance, we agree with that conclusion. Thus, the Bankruptcy Court did not abuse its discretion in finding that there was cause for lifting the stay and that the Roccos had not offered adequate protection.
B.
The Roccos next assert that the automatic stay should not have been lifted because the sheriffs sale was an avoidable preference. See In re Andrews, 262 B.R. 299, 306 (Bankr.M.D.Pa.2001) (“[T]he avoidance of the prepetition transfer moots the Defendant’s request to lift the automatic stay[.]”). A transfer of the debtor’s interest in property to a creditor is a preference and can be avoided where the transfer was made:
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
11 U.S.C. § 547(b).
It is clear here that the first four elements of that legal test are met. Thus, the only issue is whether J.P. Morgan received more than it would have if the
*642estate were liquidated and distributed as in a chapter 7 bankruptcy. A debtor asserting that a transfer to a secured creditor is a preferential transfer will only succeed when the debtor can show that the debtor has equity in the property such that the creditor was oversecured, and that the trustee would therefore have sold the property to benefit the debtor’s unsecured creditors. See In re Rambo, 297 B.R. 418, 433 (Bankr.E.D.Pa.2003) (A trustee is instructed “to sell only those secured assets that will generate funds for the benefit of unsecured creditors.”); In re Union Meeting Partners, 163 B.R. 229, 236-37 (Bankr.E.D.Pa.1994) (A debtor asserting a transfer was preferential “cannot succeed if it is proven that (1) the creditor was fully secured; (2) the transfer was nothing more than a seizure of the secured creditor’s collateral; or (3) the unsecured creditors would be paid in full in a Chapter 7 case.”).
Determining “what a trustee would receive in a liquidation ... is fact intensive.” Rambo, 297 B.R. at 432. The Bankruptcy Court found that the Roccos owed J.P. Morgan approximately $137,490, and that the property was worth approximately $137,500, so that the Roccos had no equity in the property. In fact, it appears from the record that the Roccos did not previously dispute those values. Nevertheless, they now argue that they have a right of recoupment4 that should reduce the amount they owed'J.P. Morgan, thus making the transfer a preference under 11 U.S.C. § 547. Their asserted right of re-coupment is premised on the claims they have asserted in their adversary complaint, including claims for violations of the Truth-in-Lending Act that allegedly occurred at the time they executed their mortgage. J.P. Morgan responds that the Truth-in-Lending Act and other non-bankruptcy claims could have been brought in the foreclosure action, and are therefore precluded.
We conclude that the Roccos’ arguments are baseless. First, their Truth-in-Lending Act claim is untimely. Truth-in-Lending Act claims must be brought within one year, unless they are brought “in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action[.]” 15 U.S.C. § 1640(e). Thus, because their Truth-in-Lending Act claims were not made within one year of the making of their mortgage, the Roccos may only assert those claims as a defense to an action to' collect the debt. Id.; Randall, 358 B.R. at 171-72. Here, J.P. Morgan has already foreclosed on the property and recorded the deed. Because J.P. Morgan’s request to lift the automatic stay is not an action to collect a debt, the Roccos’ Truth-in-Lending Act claim is untimely.
Furthermore, even if the Truth-in-Lending Act claim were timely, the Roc-cos’ claims would still be barred under Pennsylvania law. In their adversary complaint, the Roccos have requested relief under the Truth-in-Lending Act, the Pennsylvania Unfair Trade Practices Act, and for fraud and civil conspiracy,5 assert*643ing that their claims entitle them to rescind their mortgage, recoup any amounts paid on the mortgage, and collect damages. A claim for rescission under the Truth-in-Lending Act can be brought in a foreclosure action. See In re Soto, 221 B.R. 343, 356 n. 29 (Bankr.E.D.Pa.1998) (“[A] judgment in Debtor’s favor on the rescission claim would nullify the Bank’s rights and interests as established by the [foreclosure] Judgment!.]”). Claims for money damages, including recoupment claims, on the other hand, cannot be brought in a foreclosure action. See New York Guardian Mortg. Corp. v. Dietzel, 362 Pa.Super. 426, 524 A.2d 951, 953 (1987) (“[A] set-off for an alleged violation of the Truth-In-Lending Act cannot be asserted as a counter-claim in a mortgage foreclosure action.”).
Regardless of how the Roccos style the relief they are seeking, it is clear that they could have asserted in the state law foreclosure action their underlying claims for violations of the Truth-in-Lending Act, the Pennsylvania Unfair Trade Practices Act, and for fraud. In re Soto, 221 B.R. at 356 n. 29; In re Faust, 353 B.R. 94, 100 (Bankr.E.D.Pa.2006) (finding that rescission claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law was precluded because favorable outcome on that claim would negate foreclosure judgment); Green Tree Consumer Discount Co. v. Newton, 909 A.2d 811, 814 (Pa.Super.2006) (“Fraud in the inducement of the mortgage is clearly a permissible counterclaim under Rule 1148.”). They now attempt to assert those same claims here, not to recover money damages but to undo the foreclosure judgment and to return the property to their bankruptcy estate. Under Pennsylvania law, such an action is barred by the doctrine of res judicata, because it would nullify the foreclosure judgment, and impair J.P. Morgan’s rights as established in the foreclosure action.6 Del Turco v. Peoples Home Sav. Ass’n, 329 Pa.Super. 258, 478 A.2d 456, 463 (1984) (Claims that could have been brought as counterclaims in a previous action are barred by the doctrine of res judicata where “[t]he relationship between the counterclaim and the plaintiffs claim is such that successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action.”). Thus, because the Roccos are precluded from claiming that they owe J.P. Morgan less than the value of their home, the transfer was not a preference under 11 U.S.C. § 547 and the automatic stay was properly lifted.
III.
For the foregoing reasons, the judgment of the District Court will be affirmed.
. Before the District Court, the Roccos apparently tried to claim that the property was worth more than $137,500, but also stated that they had no equity in the property. They do not make that claim here.
. In their brief to the District Court, the Roc-cos stated that they are no longer pursuing a claim under 11 U.S.C. § 548.
. We note that the Roccos’ argument appears to show more how their own interests, rather than those of J.P. Morgan, are protected by the adversary action.
. Whether the Roccos claim is for “recoupment/' which is "the recovery or regaining of something,” Black’s Law Dictionary. 1280 (7th ed. 1999), or for “setoff,” which is “a debtor’s right to reduce the amount of a debt by any sum the creditor owes the debtor,” Black’s Law Dictionary 1376 (7th ed. 1999), is immaterial in this case, since the relief that they are actually requesting is to undo the foreclosure sale. Because they characterize their request for relief as "recoupment,” however, that is how we will refer to it in this opinion.
. It is unclear whether the Roccos intend to assert all of these claims here, since their brief to this Court argues only that they are entitled to relief under the Truth-in-Lending Act.
. We do not mean to assert that, in all cases, claims for violations of the Truth-in-Lending Act or for fraud that could have been brought in a state mortgage foreclosure proceeding are precluded in bankruptcy. See In re Randall, 358 B.R. 145, 161 (Bankr.E.D.Pa.2006) (Allowing a claim for recoupment to adjust “[t]he amount due the mortgagee ... without affecting the validity of the mortgage itself, nor the right of the mortgagee to foreclose upon its judgment.”). Here, however, the Roccos are not only attempting to change the amount due to J.P. Morgan, but to undo the foreclosure and sale altogether. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480090/ | MEMORANDUM **
The BIA did not err by concluding that petitioner is ineligible for relief under former section 212(c) of the INA. See Abebe v. Mukasey, 554 F.3d 1203, 1205-07 (9th Cir.2009) (en banc).
DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480091/ | ORDER
Nevada state prisoner Christopher Lee Cyr appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition for failure to comply with the court’s order.
Because Cyr challenges the final order in a habeas proceeding, a certificate of appealability is required before an appeal may be taken. See 28 U.S.C. § 2253(c). We construe Cyr’s notice of appeal as a request for a certificate of appealability on the issue of whether the district court properly dismissed his habeas petition for failure to follow the court’s order. So construed, the motion is denied. See 9th Cir. R. 22-l(d); see also Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480092/ | MEMORANDUM **
In these consolidated appeals, Ivan Guerrero-Melchor appeals from the 92-month sentence imposed following his jury-trial conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Guerrero-Melchor contends that the district court procedurally erred by treating the Sentencing Guidelines as mandatory and by failing to consider the 18 U.S.C. § 3553(a) sentencing factors. The record reflects that the district court was aware of its discretion under the advisory Sentencing Guidelines, adequately considered the § 3553(a) sentencing factors, and provided a reasoned explanation for the sentence imposed. See United States v. Carty, 520 F.3d 984, 992-96 (9th Cir.2008) (en banc); see also United States v. Diaz-Argueta, 564 F.3d 1047, 1051-52 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480093/ | MEMORANDUM **
Omar Angel Serrano-Guerrero appeals from the 86-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Serrano-Guerrero contends that the district court procedurally erred at sentencing by: 1) failing to consider all of the 18 U.S.C. § 3553 factors; 2) presuming that the Guidelines range was reasonable; and 3) failing to adequately address his mitigating arguments. The record reflects that the district court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).
Serrano-Guerrero also contends that the sentence is substantively unreasonable in light of the district court’s failure to depart downward based on Serrano-Guerrero’s lost opportunity to serve his federal sentence concurrent to a state sentence. The district court did not abuse its discretion by declining to impose a lower sentence on this basis. See id. at 993. Serrano-Guerrero also contends, for the first time on appeal, that the sentence is substantively unreasonable because the Guidelines range is based upon a 16-level enhancement for a relatively stale and minor drug trafficking offense. In light of the totality of the circumstances, the within-Guidelines sentence is substantively reasonable. See id.; cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480094/ | MEMORANDUM **
Juan Bernardo Paniagua-Pacheco appeals from'his guilty-plea conviction and 87-month sentence for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Paniagua-Pacheco’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480095/ | MEMORANDUM **
Kisha Lyn Masga King appeals from the revocation of her supervised release and the 9-month term of imprisonment imposed upon revocation. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), King’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480096/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James E. Reid appeals the district court’s orders dismissing his appeals from the bankruptcy court and denying his motions for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Reid v. Knarf Investments, Nos. 1:06-cv-02582BEL; BK-01-50422 (D. Md. Apr. 5, 2007; Apr. 17, 2007; Apr. 30, 2007; May 18, 2007).* 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.
Reid has filed a motion to incorporate a decision of the bankruptcy court that was entered after he noted this appeal. We deny the motion but have forwarded it the district court to be docketed as a notice of appeal of the September 28, 2007, order pursuant to Fed. R.App. P. 4(d). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480097/ | MEMORANDUM **
Sharyn Kae Meenderinck (“Meender-inck”), the debtor, was involved in a fraudulent securities scheme through Resource Development International (“RDI”) in which investors were told that they were trading European financial instruments when in fact they were investing in a Ponzi scheme. She was sued by the court-appointed receiver in a related securities fraud case, resulting in a judgment against Meenderinck for more than $200,000. A group of 21 individual investors in the RDI investment scheme, nine of whom are appellants here, then brought a separate ac*914tion against Meenderinck seeking to recover their lost assets.
Meenderinck filed for Chapter 13 bankruptcy shortly thereafter. On her bankruptcy schedule, she listed the $200,000 receiver’s judgment, but did not include the pending suit by the individual investors. By this omission, which she says was accidental, she fell below the unsecured debt limit for Chapter 13 bankruptcy. At the time, this limit was $307,675. 11 U.S.C. § 109(e) (2000). Appellants do not challenge Meenderinck’s good faith.
The bankruptcy court confirmed Meen-derinck’s Chapter 13 bankruptcy plan. The Ninth Circuit Bankruptcy Appellate Panel (“BAP”) affirmed. Appellants then appealed to this court, arguing that, because of their suit against Meenderinck, Meenderinck’s debt exceeded the allowable debt limit under Chapter 13, found at 11 U.S.C. § 109(e).
We review de novo a decision of the BAP, “conducting an independent review of the bankruptcy court’s decision without deferring to the BAP.” Turtle Rock Meadows Homeowners Assoc. v. Slyman (In re Slyman), 234 F.3d 1081, 1085 (9th Cir.2000). The bankruptcy court’s findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 980 (9th Cir.2001).
In In re Scovis, the Ninth Circuit “explicitly state[d] the rule for determining Chapter 13 eligibility under § 109(e) to be that eligibility should normally be determined by the debtor’s originally filed schedules, checking only to see if the schedules were made in good faith.” 249 F.3d at 982. There was and is no allega tion of bad faith here, so the bankruptcy court properly confirmed the Chapter 13 plan given the facts presented at the time of the petition. Although appellants urge the panel to create a new exception to the Scovis rule, we decline to do so.1
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. A three-judge panel does not have authority to modify a rule announced in prior circuit precedent. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480098/ | PER CURIAM.
Hunt appeals from the decision of the Court of Appeals for Veterans Claims (“Veterans Court”) affirming the decision of the Board of Veterans’ Appeals (“the Board”) denying entitlement to service connection for a psychiatric disability. Hunt v. Shinseki, — Fed.Appx. -, 2009 WL 1904343 (2009). Hunt argues that the Veterans Court erred in its interpretation of 38 U.S.C. § 7104(d)(1) by accepting the reasons and bases set forth by the Board for rejecting certain evidence and by not independently reviewing those reasons for adequacy and justification. In effect, Hunt is asking this court to review factual determinations. Such review is outside the scope of our jurisdiction. 38 U.S.C. § 7292(d)(2). Accordingly, we dismiss.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480100/ | JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is
Ordered and Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480101/ | JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is Ordered And Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480102/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C. CIR. RULE 34(j). The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is
ORDERED AND ADJUDGED that the district court’s September 17, 2009, 654 F.Supp.2d 17, order denying the motion for reconsideration of its summary judgment ruling be affirmed. As the district court found, the unpaid bills on which Winston & Strawn sue clearly show the application of the $10,000 retainer fee to the amount owed. As to appellants’ second assignment of error, the representation agreement between the parties specifies that the lawyers who performed work for appellants may be billed for within a range of possible fees. Appellants’ presentment of a prior oral agreement that they would only be charged fees at the low end of those ranges is inconsistent with the written representation agreement and is barred by the parol evidence rule. See District-Realty Title Ins. Corp. v. En*2smann, 767 F.2d 1018, 1022 (D.C.Cir.1985).
Appellants’ last argument to us is that the district court erred in not staying the litigation proceedings to allow arbitration to go forward. This argument fails under the rule established in Khan v. Parsons Global Services, Ltd., 521 F.3d 421 (D.C.Cir.2008). There, we held that a party is deemed to have waived his right to compel arbitration if he actively participated in the lawsuit. At the time appellants filed their motion to stay proceedings, they had already filed a motion, stylized under Fed.R.Civ.P. 12(b)(6), but which was supplemented with materials outside the pleadings. When this occurs, “the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). Because appellants had already actively participated in the lawsuit, the district court did not err in holding that they had waived their right to compel arbitration.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480104/ | JUDGMENT
PER CURIAM.
These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed April 2, 2010, denying motions for a preliminary injunction, be affirmed. For a preliminary injunction to issue “a litigant must show ‘(1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.’ ” Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C.Cir.1998) (quoting CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C.Cir.1995)).
The district court correctly concluded that appellants failed to show a substantial likelihood of success on the merits. When the Hatch-Waxman Act’s forfeiture provisions are viewed in the context of the statute’s incentive structure, it becomes clear that Congress could not have intended a brand manufacturer’s unilateral decision to cause the premature expiration of a patent (in the face of a generic applicant’s challenge to the patent in a paragraph IV certification) to strip the first generic applicant of the 180-day period of marketing exclusivity granted by the statute. See Teva Pharms. USA, Inc. v. Sebelius, 595 F.3d 1303, 1317-18 (D.C.Cir.2010). We will thus affirm the district court’s decision to deny appellants’ motions for a preliminary injunction. See Apotex, Inc. v. FDA, 449 F.3d 1249, 1253-54 (D.C.Cir.2006).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. *5See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480105/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court. The appeal was briefed by counsel for the appellee, court-appointed amicus, and appellant, then appearing pro se, and argued by amicus and counsel for both parties. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. R. 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
Appellant Raymond Stephens acquired chronic beryllium disease through his employment at a facility that manufactured beryllium parts for use by the Department of Energy (DOE). Stephens successfully applied for $150,000 in benefits under Part B of the Energy Employees Occupational Illness Compensation Program Act, 42 U.S.C. § 7384 et seq. (2006), which applies to employees of beryllium vendors, among others. Stephens then requested supplemental benefits under Part E of the Act, which applies only to DOE contractor employees.
The Office of Workers Compensation Programs (OWCP) in the Department of Labor denied his request. According to the OWCP, Stephens was not a DOE contractor employee within the meaning of the Act because he had not worked at a DOE facility. The Act defines DOE facilities as including “any building, structure, or premise” (A) in which operations have been conducted on behalf of the DOE and (B) “with regard to which the [DOE] has or had (i) a proprietary interest; or (ii) entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.” 42 U.S.C. § 7384Í (12). After reviewing over a thousand documents collected from the DOE as well as Stephens’s own submissions, the OWCP determined that the plant at which Stephens worked satisfied part (A) of this definition but not part (B). Stephens timely sought review in the district court, which held that the denial of Stephens’s application was not arbitrary and capricious and granted summary judgment to the Department of Labor. We affirm.
Amicus first argues that the OWCP arbitrarily and capriciously failed to address whether the DOE entered into a contract with the plant’s owner, Loral American *6Beryllium Company, to provide construction at the plant. According to amicus, the DOE entered into such a contract when it required Loral to make modifications to the plant that were necessary to produce beryllium parts compliant with the DOE’s product specifications and then reimbursed Loral for the costs of the modifications. Stephens did not raise this argument before the OWCP, and it is “not the kind of clear point[ ] that an agency must consider sua sponte.” Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1150 (D.C.Cir.2005). The agency’s failure to address the point was not arbitrary and capricious.
The same is true of amicus’s argument that the DOE acquired a proprietary interest in the plant. The DOE leased a machine used in the production of beryllium parts and required Loral to install the machine at its plant. The OWCP concluded that this transaction proved that the DOE had a proprietary interest in the machine itself but not in “any building, structure, or premise” at the plant. Ami-cus contends that the OWCP should have considered whether the machine was a fixture that could be considered part of the plant’s realty. Again, Stephens did not make this argument before the agency, which did not act arbitrarily in failing to consider it sua sponte. See id. In any event, the general rule is that a fixture becomes the property of the owner of the land; the land does not become the property of the owner of the fixture. See, e.g., John Ward Hill. A Manual of the Law op Fixtures § 1, at 13 (New York, Baker, Voorhis & Co., 2d ed. 1871).
Stephens also contends that the plant was a DOE facility because the DOE had an intellectual property interest in the manufacturing process used there. He argues that the OWCP misread 42 U.S.C. § 7384Í (12) when it required that the DOE have an interest in the plant’s real property. According to Stephens, the phrase “with regard to which the [DOE] has or had a proprietary interest” in paragraph (B) modifies “operations” in paragraph (A). The OWCP reads paragraphs (A) and (B), taken together, as a compound modifier that refers back to the phx'ase “any building, structure, or premise.” The OWCP’s construction of the statute is both more grammatical and more consistent with the stxnxcture of subsection (12) than is Stephens’s. The agency’s interpi’etation was not arbitraxy and capricious. Cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Amicus also contends that the OWCP misconstrued the procedural rales regarding claims under the Act by placing the burden of proof on Stephens. The court will not disturb the agency’s interpretation unless “plainly erroneous” or “inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). The regulation states: “Except where otherwise provided in the Act and these regulations, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibili-ty____” 20 C.F.R. § 30.111. Amicus first argues that the criteria for eligibility do not include proof that a facility satisfies the statutory definition of “DOE facility.” But proof that the claimant was a “[DOE] contractor employee as defined in [20 C.F.R.] § 30.5(w)” is one of the relevant critei’ia, id. § 30.230, and making that showing requix-es px'oof that the claimant was “employed at a DOE facility,” id. § 30.5(w). It was not arbitraxy or capricious for the OWCP to conclude that the criteria for eligibility include proof that a site is a DOE facility. In the alternative, amicus contends that § 30.5(x)(2) contains an exception to the general burden of *7proof set forth in § 30.111. Section 30.5(x)(2) provides that the DOE and Department of Labor will periodically list all DOE facilities in the Federal Register. Id. § 30.5(x)(2). But § 30.5(x)(2) says nothing about who bears the burden of proving that a site should be listed as a DOE facility when the DOE and Department of Labor have not been able to identify it as such. The OWCP did not act arbitrarily or capriciously in construing the regulations to place the burden on Stephens.
Finally, there is no merit to the contention that the district court erred in declining to consider evidence outside the administrative record. It is a “widely accepted principle of administrative law that the courts base their review of an agency’s actions on the materials that were before the agency at the time its decision was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C.Cir.1997). We are not persuaded that any exception to that rule applies here.
We have fully considered Stephens’s remaining arguments and find that none warrants reversal. The court thanks amici curiae Matthew Shors and Anton Metlit-sky of O’Melveny & Myers LLP for their assistance in this matter.
Pursuant to D.C. Circuit Rule 36(d), this disposition will not be published. The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(a)(1). | 01-04-2023 | 11-05-2022 |
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