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https://www.courtlistener.com/api/rest/v3/opinions/8472532/
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SUMMARY ORDER
Defendant Jack J. Minicone Jr., proceeding pro se, appeals from an order denying his second motion for a reduced sentence pursuant to 18 U.S.C. § 8582(c)(2), construed by the district court as a motion to reconsider the denial of his first § 3582(c)(2) motion. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
“[W]e review a district court’s decision to deny a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion,” United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009), and its interpretation of the Sentencing Guidelines and relevant statutes de novo, see United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009); United States v. Gray, 535 F.3d 128, 130 (2d Cir.2008). We identify neither abuse of discretion nor legal error in the district court’s denial of Minicone’s second § 3582(c)(2) motion.1
A sentencing court’s authority to modify an imposed sentence is limited to the conditions set forth in 18 U.S.C. § 3582. See Poindexter v. United States, 556 F.3d 87, 89 (2d Cir.2009). Minicone contends he is eligible for relief pursuant to § 3582(c)(2) because the Guidelines sentencing range applicable to his case was lowered pursuant to 28 U.S.C. § 994(o) by the Sentencing Commission’s adoption of Amendment 591 on November 1, 2000, made retroactive by U.S.S.G. § 1B1.10(c). See Poindexter v. United States, 556 F.3d at 89.
Minicone’s claim is without merit. “Amendment 591 is limited in scope to the determination of the applicable offense guideline in Chapter Two of the Sentencing Guidelines,” id. at 90, and “requires that the initial selection of the offense guideline be based only on the statute (or offense) of conviction rather than on judicial findings of actual conduct ... that will never be made by the jury,” United States v. Rivera, 293 F.3d 584, 585 (2d Cir.2002). Minicone does not argue, however, that the sentencing court erred in its selection of U.S.S.G. § 2E1.1 as the applicable offense guideline. Rather, he argues that the court erred in its application of § 2E1.1(a)(2) in calculating his base offense level. This argument is beyond the scope of Amendment 591, which “applies only to the choice of the applicable offense guideline, not to the subsequent selection of the base offense level.” Id. at 586 (emphasis in original); Poindexter v. United States, 556 F.3d at 90; see also United States v. Hurley, 374 F.3d 38, 40-41 (1st Cir.2004) (holding that Amendment 591 did not affect use of relevant conduct “to identify the pertinent ‘underlying racketeering activity pursuant to § 2El.l’s cross reference”).
Because Amendment 591 “ ‘does not have the effect of lowering the defendant’s applicable guideline range,”’ Minicone is ineligible for relief under 18 U.S.C. § 3582(c)(2). United States v. Martinez, 572 F.3d 82, 86 (2d Cir.2009) (quoting U.S.S.G. § 1B1.10(a)(2)(B)). Thus, Mini-cone’s arguments regarding, inter alia, subsequent amendments to New York Penal Law or the proper application of § 2E1.1(a)(2) are not properly considered here. Such arguments are without merit in any event, because (1) a change in state *639law is not one of the “limited conditions” under which a court may entertain a § 3582 motion, see Poindexter v. United States, 556 F.3d at 89; and (2) we have previously held that, under U.S.S.G. § 2E1.1(a)(2), second-degree murder under New York law may be analogized to first-degree murder under 18 U.S.C. § 1111, see, e.g., United States v. Carr, 424 F.3d 213, 231 (2d Cir.2005) (citing cases).
For the foregoing reasons, the order of the district court is AFFIRMED.
. We need not here decide whether a more stringent standard applies to review of mo-dons to reconsider previously denied § 3582(c)(2) motions, as Minicone's appeal is without merit under any standard.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472535/
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SUMMARY ORDER
This is an appeal from two orders of the United States District Court for the Eastern District of New York (Sifton,./.). The first, as a Rule 37 discovery sanction, struck appellants’ answer, including the cross-claims and entered a default judgment against them in favor of the plaintiff. The order also denied as moot appellants’ motion to implead additional third-party defendants. Ocello v. City of New York, No. CV-05-3725, 2008 WL 789857, 2008 U.S. Dist. LEXIS 22556 (E.D.N.Y. Mar.21, 2008). The second order denied appellants’ motion for reconsideration of the sanctions order. Ocello v. City of New York (Ocello II), No. CV-05-3725, 2008 WL 2827424, 2008 U.S. Dist. LEXIS 55767 (E.D.N.Y. July 21, 2008).
This case arose out of injuries sustained by plaintiff Raffaele Ocello, an employee of the Department of Transportation of the City of New York working as a seamen on the Staten Island Ferry. In 2005, Ocello was injured while offloading passengers at St. George Terminal, Staten Island when a section of railing fell from the apron (a device lowered from the dock to the ferry) and struck him on the head and upper body. The railing that fell on Ocello was welded to the apron, most likely during construction on the dock in 1995-96. Appellant, Gates Construction Corporation (“Gates”), was the general contractor in charge of that construction. Appellee, Harris Structural Steel Company, Inc. (“Harris”), was the subcontractor tasked with fabricating parts of the dock offsite. Predicating jurisdiction on the Jones Act, 46 U.S.C. § 30104, Ocello initially brought suit against appellee, the City of New York (“the City”), and others whose relationship to the case in not relevant to this appeal. Ocello then amended his complaint to add as defendants Gates, Great Lakes Dredge & Dock Company, LLC (“Great Lakes”), which had previously purchased all of Gates’s assets, and Harris. In their answer to the amended complaint, Gates and Great Lakes (“appellants”) alleged cross-claims against their co-defendants, the City and Harris.
Ultimately, as a consequence of conduct in which their counsel engaged during discovery, the district court struck the answer of Gates and Great Lakes, which was *641followed by the entry of a default in favor of Oeello in the underlying action. Striking the answer also had the effect of dismissing the cross-claims against the City and Harris. Gates and Great Lakes seek review only of the latter sanction relating to their cross-claims against the City and Harris and the denial of their motion to implead third-party defendants. They do not seek reversal of the entry of the default in favor of Oeello in the principal action. Instead, they entered into a settlement agreement with Oeello for $2.5 million, which also secured releases from Oeello of his claims against the City and Harris.
We review “all aspects of a District Court’s decision to impose sanctions for abuse of discretion.” United States v. Seltzer, 227 F.3d 36, 39 (2d Cir.2000) (internal quotation marks omitted). Nevertheless, as Chief Justice Marshall observed in oft-cited language, a motion addressed to the discretion of the court is “a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F.Cas. 30, 35 (C.C.Va.1807) (No. 14,-692d). The “sound legal principle” guiding the choice of the sanction to impose for dilatory conduct is that “[t]he remedy [of dismissal] is pungent, rarely used, and conclusive. A district judge should employ it only when he is sure of the impotence of lesser sanctions.” Dodson v. Runyon, 86 F.3d 37, 39 (2d Cir.1996) (first bracket added, internal quotations omitted). While Dodson involved a dismissal for failure to prosecute, the same principle applies to dismissal under Fed.R.Civ.P. 37, which we have held, “is a drastic penalty which should be imposed only in extreme circumstances.” Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir.1986) (internal quotation omitted). Thus, “[b]efore the extreme sanction of preclusion [or dismissal] may be used by the district court, a judge should inquire more fully into the actual difficulties which the violation causes, and must consider less drastic responses.” Outley v. City of New York, 837 F.2d 587, 591 (2d Cir.1988).
We find it difficult to reconcile the dismissal of the cross-claims against the City and Harris with the sound legal principle that dismissal should be utilized in circumstances in which it is clear that lesser sanctions would not be sufficient to either address the prejudice suffered as a consequence of the alleged misconduct or to deter such conduct by the offending party or those in other cases. On this score, at the suggestion of one of our staff attorneys, appellants filed a motion for reconsideration. The motion proposed an alternative sanction “in the form of bearing the costs of all parties in connection with the Court’s March 20, 2008 Order and this Order [denying the motion for reconsideration] as well as further costs of all parties for future fact discovery.” Ocello II, 2008 WL 2827424, at *5, 2008 U.S. Dist. LEXIS 55767, at *14. Although the district judge denied the motion for reconsideration on procedural grounds, we can assume that he would have rejected it for the same reason that he initially rejected a comparable sanction. Specifically, he did so after concluding that this sanction would “not adequately address the delay and expense already suffered by the parties nor [would] it ensure that Great Lakes and Gates will comply with their obligations in a timely and honest manner.” Ocello, 2008 WL 789857, at *8, 2008 U.S. Dist. LEXIS 22556, at *26. This conclusion is problematic for two reasons.
First, it is not clear why the “delay and expense already incurred” could not be cured by the proposed monetary sanctions. Indeed, the district judge acknowledged that “[e]ach of the aforementioned acts of non-compliance only lasted several *642months.” Ocello, 2008 WL 789857, at *8, 2008 U.S. Dist. LEXIS 22556, at *27. Moreover, the City and Harris have been unable to articulate any specific meaningful prejudice from appellants’ four month delay in disclosing a material witness. Nor have they articulated any prejudice caused by Gates and Great Lakes’s delay in producing certain documents, which appeared to have been helpful to the appellants, until a little more than a month after the close of discovery. Second, there is no evidence that appellants — who at this point had already replaced the lawyers responsible for the discovery abuses — would not “participate in the discovery process in good faith and provide their new counsel with the information necessary in order to comply with discovery orders.” Ocello, 2008 WL 789857, at *8 n. 10, 2008 U.S. Dist. LEXIS 22556, at *27 n. 10. While the district judge based this conclusion on what he characterized as the “past behavior” of Gates and Great Lakes, id., he did not cite any evidence to suggest that they participated in or directed their counsel’s discovery abuses. Indeed, here, the City argues that the sanctions imposed were “for Great Lakes’ counsel’s abusive litigation practices.” Similarly, Harris’s brief lays the responsibility for the alleged misconduct on the conduct of “counsel for Great Lakes and Gates.” ‘We have long-suggested imposing sanctions directly on dilatory lawyers in appropriate cases, and we continue to commend to our district court judges this ‘sound practice.’ ” Dodson, 86 F.3d at 40; Cf. Litton Sys., Inc. v. AT & T Co., 700 F.2d 785, 828 (2d Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984) (affirming trial court’s award of attorneys fees rather than dismissal given trial court’s reluctance to “ ‘visit upon the client the sins of counsel, absent client’s knowledge, condonation, compliance, or causation.’ ”).
Nor is there any basis for the conclusory assertion that “lesser sanctions are not sufficient to ensure that Great Lakes and Gates do not benefit from their obstruction of discovery.” Ocello, 2008 WL 789857, at *8, 2008 U.S. Dist. LEXIS 22556, at *26. The district judge never explained what “benefits” appellants had or would continue to derive from their conduct in discovery. On the contrary, the settlement between Ocello and appellants, which released all claims Ocello may have had against the City and Harris, was the direct consequence of the default in favor of Ocello. Moreover, Gates and Great Lakes paid Ocello $2.5 million without assurance that they would obtain any contribution or indemnification from the City or Harris. Indeed, all parties agree that the City and Harris would be free to challenge the reasonableness of the $2.5 million paid to Ocello. See McDermott v. AmClyde, 511 U.S. 202, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994) (adopting proportionate share rule with respect to settling and non-settling defendants in admiralty action). Thus, the unchallenged entry of the default in favor of Ocello, “the most severe in the spectrum of sanctions provided by statute or rule,” together with such other sanctions as the district judge may impose on remand, advances the significant general deterrent effect that Rule 37 is intended to serve.3 National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir.1979).
In sum, while the conduct in which the appellants engaged warranted the imposi*643tion of sanctions, if only because of their violation of discovery orders, the reasons given by the district judge for not imposing a lesser sanction than the dismissal of appellants’ cross-claims are not supported by the record or by the need to deter the appellants or parties in other cases from engaging in similar behavior. Under these circumstances here, it was an abuse of discretion to strike the answer to the extent it caused the dismissal of appellants’ cross-claims. Accordingly, we VACATE the judgment of the district judge to the extent that it struck the portions of appellants’ answer asserting cross-claims against the City and Harris and REMAND for consideration of such lesser sanction as he deems appropriate and for reconsideration of appellants’ motion to implead third party-defendants which was denied on the ground that it was moot. We DISMISS the appeal from the order denying the motion for reconsideration as moot.
. For this, among other reasons, we emphasize that the default order in favor of Ocello and the settlement that followed are in no way undermined by our decision today.
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https://www.courtlistener.com/api/rest/v3/opinions/8472537/
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SUMMARY ORDER
Petitioner Quang Li, a native and citizen of the People’s Republic of China, seeks review of: (1) the October 25, 2007 order of the BIA denying his third motion to reopen; and (2) the July 24, 2008 order of the BIA denying his fourth motion to reopen. In re Quang Li, No. A072 365 958 (B.I.A. Oct. 25, 2007); In re Quang Li, No. A072 365 958 (B.I.A. July 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Li’s April 2007 and March 2008 motions to reopen were untimely where the BIA entered a final administrative order dismissing his appeal in May 1996. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). There are no time limitations for filing a *645motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
I. Dkt. No. 07-5202-ag (L)
The BIA did not abuse its discretion in denying Li’s third motion to reopen because it reasonably found that he failed to proffer material evidence in support of that motion. Li was previously found not credible in his underlying proceeding, and his changed country conditions argument was supported only by an unauthenticated subpoena. In such circumstances, the BIA does not err in refusing to credit the movant’s evidence. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007) (finding that the agency may properly conclude that a prior adverse credibility determination undermines the authenticity of documentary evidence accompanying an alien’s motion to reopen); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (holding that a “finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner”); 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
II. Dkt. No. 08-3912-ag (Con)
The Government has moved for summary affirmance of the BIA’s denial of Li’s fourth motion to reopen. Construing that motion as seeking summary denial of the petition for review, we grant the motion. The BIA did not err in finding that Li failed to demonstrate changed country conditions excusing the time limitation for filing his fourth motion to reopen where he failed to submit any evidence in support of that motion. See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904 (finding that the BIA does not abuse its discretion in denying a motion to reopen when the movant has not introduced previously unavailable, material evidence). We note that the translation errors which Li argues constitute the “functional equivalent” of changed country conditions, would not materially alter the meaning of the evidence Li described-evidence the BIA has considered time and again. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).
To the extent Li alleges a due process violation, he has no due process right in seeking a discretionary grant of a motion to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Li has remained in this country illegally for almost seventeen years. In that time he has filed, and had adjudicated, an asylum application and four motions to reopen. He has received ample process. See Yuen Jin, 538 F.3d at 157; see also Wei Guang Wang, 437 F.3d at 273-74. Accordingly, Li’s petition for review is meritless and summary disposition in this case is appropriate. See Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir.1995) (per curiam).
For the foregoing reasons, the petition for review in Dkt. No. 07-5202-ag (L) is DENIED. In Dkt. No. 08-3912-ag (Con), Respondent’s motion for summary affirmance (construed by the Court as a motion for summary denial) is GRANTED and *646the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472539/
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SUMMARY ORDER
Plaintiffs-Appellants Suresh Pathare, Samy Elghayesh, Nader Solimán, and Gordhan Patel appeal from a judgment of the United States District Court for the Southern District of New York (Swain, J.). The district court granted a motion for summary judgment by Defendants-Appellees Joel I. Klein and the New York City Department of Education (“DOE”) seeking dismissal of the Appellants’ complaint alleging discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e el seq., and state and local human rights laws.
Appellants — who are of Indian and Egyptian national origin — claim that the DOE discriminated against them based on national origin when it did not promote them to supervisory positions within the DOE’s Department of School Facilities (“DSF”), but did promote CaucasianAmeriean employees. The district court concluded, however, that Appellants failed to demonstrate a genuine dispute as to whether the defendants engaged in discrimination. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
We review a decision granting summary judgment de novo. Rubens v. Mason, 527 F.3d 252, 254 (2d Cir.2008). A motion for summary judgment may be granted where the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). We have been “particularly cautious” about granting summary judgment when an employer’s intent is in question because “direct evidence of an employer’s discriminatory intent will rarely be found.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). Still, “a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment.” Id.; see also McPherson v. N.Y. City Dep’t of Educ., 457 F.3d 211, 215 n. 4 (2d Cir.2006).
Appellants observe that the DOE initially chose to promote some CaucasianAmeriean candidates who ranked lower after interviews than candidates of foreign national origin. They assert that the selected candidates’ strong work experience and DOE work record were already considered in connection with the interview rankings, which, according to Appellants, demonstrates that those purportedly legitimate bases for the promotion decisions were pretextual. In support of their contentions, Appellants further note that Caucasian-Americans were hired for all six of the initial supervisory positions even though roughly half of the candidates were not Caucasian-Ameriean.
Appellants have not, however, made out a prima facie case of discrimination, because none of them was ranked *648higher after the interviews than any of the candidates who were ultimately hired. Therefore, DSF’s failure to hire them does not raise an inference of discrimination. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001) (noting that in order to make out a prima facie case of discrimination, a plaintiff must establish “that the adverse employment decision was made under circumstances giving rise to an inference of unlawful discrimination”). Other foreign-born candidates were passed over in spite of the fact that they were more highly ranked after the interviews than the Caucasian-American candidates who received promotions, but those higher-ranked candidates are not plaintiffs in this case.
Even if Appellants have satisfied the de minimus burden necessary to make out a prima facie case, they have failed to raise a genuine issue as to whether the DOE’s explanation for the promotion decisions is a pretext for national origin discrimination. See Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir.2000). According to Appellees, the DSF panel measured candidates’ ability to satisfy the central requirements for the supervisory position based on interview scores as well as on work experience and DOE work record. These are appropriate bases for promotion decisions. See Byrnie, 243 F.3d at 104-05 (noting that partially subjective hiring standards are permissible when presented in clear and specific terms). Specifically, one of the Caucasian-American candidates chosen in the first round in spite of having a lower interview ranking than other candidates had a record of excellent job performance with the DOE, and another had recent experience in a similar supervisory position.
Appellants have not shown that this background information is entirely cumulative of the information DSF learned through the interviews, which might have suggested pretext. Nor have Appellants presented evidence that the candidates chosen lacked the minimal qualifications DSF required, or that their own credentials were “so superior to the credentials of the person[s] selected for the job” that there is a genuine issue as to whether any “reasonable person, in the exercise of impartial judgment, could have chosen the candidate[s] selected over the plaintiff[s] for the job in question.” Byrnie, 243 F.3d at 103 (internal quotation marks omitted); see also id. (“[Tjhe court must respect the employer’s unfettered discretion to choose among qualified candidates.” (quoting Fischbach v. D.C. Dep’t Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996))). Furthermore, Appellants have not alleged that any members of the panel made statements reflecting discriminatory animus based on national origin. Finally, Appellants’ claims are seriously undermined by the undisputed fact that DSF did eventually promote members of the relevant protected groups to two out of the six supervisory positions available. Appellants’ assertion that these latter promotions were part of a DSF effort to “cover up” discrimination is conclusory and unsupported.
A reasonable employer may have promoted the candidates selected, and Appellants have failed to present evidence creating a genuine issue as to whether discrimination was the real reason for the promotions.
We have considered Appellants’ remaining contentions on appeal and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8472541/
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SUMMARY ORDER
Defendants-appellants Michael and Alex Mitselmakher (collectively “the Mitselmakhers”) appeal from a memorandum decision and order of the United States District Court for the Eastern District of New York (Cogan, J.) dated November 20, 2008, 2008 WL 5068609, denying their motion for attorneys’ fees and expenses brought pursuant to the Hyde Amendment. We assume the parties’ familiarity with the un*650derlying facts and procedural history of this case.
The Hyde Amendment was “enacted as part of P.L. 105-119, the $31.8 billion Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1998, and is found as a statutory note to 18 U.S.C. § 3006A.” United States v. Schneider, 395 F.3d 78, 85 (2d Cir.2005) (internal quotation marks omitted). It provides that a court may award a “reasonable attorney’s fee and other litigation expenses” to a defendant who prevails in a criminal case “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” Id. at 85-86 (quoting Pub.L. No. 105-119, § 617, 111 Stat. 2440, 2519).
This Court has never “parse[d] the precise meaning” of the terms “vexatious,” “frivolous,” or “in bad faith,” see id. at 86, nor need it do so here, because this case “clearly falls short of the type of abusive prosecutorial conduct that would trigger Hyde Amendment liability.” Id.
One of the Mitselmakhers’ principal arguments is that the government pursued a theory of entrapment that “was foreclosed by precedent and obviously wrong.” We agree with the district court, however, that the evidence could have supported the government’s theory that the Mitselmakhers were predisposed to commit the charged offense. See, e.g., United States v. Brand, 467 F.3d 179, 190-91 (2d Cir.2006). We note further that the Mitselmakhers’ argument that the government’s case was predicated on the “twelfth recorded conversation” is belied by the totality of the evidence, which demonstrates that the government relied on many of the recorded conversations in presenting its case to the jury.
We acknowledge the district court’s criticism of the government’s conduct in this case, criticism that the government appears to concede was warranted. But we ultimately agree with the district court’s conclusion that had the jury credited the government’s evidence, the Mitselmakhers could have been convicted of the crimes with which they were charged. Given those circumstances, we do not believe that the district court erred when it denied the Mitselmakhers’ motion for attorneys’ fees and expenses.
We have considered all of the Mitselmakhers’ arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8472543/
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SUMMARY ORDER
Plaintiffs, police officers in the Town of Harrison, New York (the “Town”), allege that the Town, its police chief, and a police captain (collectively, “defendants”) violated plaintiffs’ First, Fourth, and Fourteenth Amendment rights, see 42 U.S.C. § 1983, and Title III of the Omnibus Crime Control and Safe Streets Act (Title III), 18 U.S.C. § 2520, by installing a video surveillance camera in the police department locker room. They now appeal an award of summary judgment in favor of defendants, a ruling we review de novo. Oll*652man v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). We will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Fourth Amendment
Although defendants adduced considerable evidence that the challenged camera provided no ongoing video surveillance of the locker room, plaintiffs submit that certain contradictions in the evidence would permit a reasonable jury to conclude that they were searched, thereby precluding an award of summary judgment. We disagree. Relying on two still photographs taken by the camera, neither of which depicts any person, and testimony from Andrew Natarelli, who installed the camera, stating that he tested the camera by observing Sergeant Dominick Pascale, who is not a party to this case, plaintiffs argue that the camera was operational and that its field of view was broader than defendant Anthony Marraccini’s locker. Viewed in the light most favorable to the plaintiffs, this evidence establishes only the “potential for an invasion of privacy.” United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). It does not show that plaintiffs’ expectation of privacy in the workplace locker room was ever infringed.1 See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir.1994).
Although plaintiffs acknowledge that defendants never used the camera to record them, they argue that defendants David Hall and Marraccini admitted to using the camera to view them live. See Marraccini Aff. ¶ 27; Hall Aff. ¶4; Nardi Aff. II2. The statements cited by plaintiffs in fact express only defendants’ tactless responses to the discovery of the camera; in context, they cannot reasonably be construed as admissions that defendants ever actually viewed plaintiffs on camera.
Defendants have, in fact, persistently denied ever observing plaintiffs on camera. Plaintiffs now argue that evidence suggesting the camera worked on two occasions sufficiently contradicts defendants’ statements that the camera “never worked” or was “never hooked up” to support an inference of constitutionally proscribed viewing. Appellants’ Br. at 24. In the district court, however, plaintiffs did not contest that (a) the camera’s motion sensor never functioned as intended, or that (b) Marraccini never accessed the DigiVue software on his computer. On this record, we identify no inconsistency that would preclude summary judgment. Defendants’ later statements that the camera did not operate as intended merely clarified their earlier assertions about the camera’s non-functionality. Moreover, plaintiffs declined to inspect Marraccini’s computer for possible evidence of either DigiVue access or locker room viewing. While such an inspection may have been inconclusive, in its absence, plaintiffs’ contention that the computer was used to violate their Fourth Amendment rights reduces to speculation. Because plaintiffs failed to adduce sufficient admissible evidence to raise a genuine issue of material fact about whether they were ever observed on camera, the district *653court properly entered summary judgment in favor of defendants on the Fourth Amendment claim.2
2. Title III
Plaintiffs submit that evidentiary contradictions as to the audio recording capacity of the locker room camera precluded summary judgment on their Title III claim. See 18 U.S.C. § 2520. Even assuming that a jury were to resolve this factual dispute in favor of plaintiffs, finding that the camera was capable of recording sound, plaintiffs were still required to adduce some evidence that their communications were, in fact, intercepted to defeat summary judgment. See id. § 2520(a); see also DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir.2005) (noting propriety of summary judgment when Title III plaintiff presents no evidence that device was actually used to intercept communications); Gross v. Taylor, 1997 WL 535872, at *4-*5 (E.D.Pa. Aug.5, 1997) (holding that plaintiffs lacked standing under Title III because they could not show that “an interception actually took place”). Citing Scutieri v. Paige, 808 F.2d 785 (11th Cir.1987), plaintiffs contend that a reasonable jury could infer interception from the totality of the circumstances. Scutieri, however, does not support plaintiffs’ argument because the defendant in that case conceded that an interception actually occurred. Id. at 790. Because plaintiffs have adduced no evidence that their communications were intercepted, we conclude that the district court properly entered summary judgment on the Title III claim.
3. First Amendment
Finally, plaintiffs submit that they were entitled to pursue a First Amendment retaliation claim because their efforts to persuade the PBA to report the challenged surveillance to the district attorney demonstrate that they “spoke as ... citizen[s] on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “Whether an employee’s speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.1999) (citing Connick v. Myers, 461 U.S. 138, 147-48 & n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In making this determination, the speaker’s motive is relevant, see Lewis v. Cowen, 165 F.3d at 163-64, but “not dispositive,” see Sousa v. Roque, 578 F.3d 164, 173-74 (2d Cir.2009). “An employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking ‘upon matters only of personal interest.’ ” Id. (quoting Connick v. Myers, 461 U.S. at 147, 103 S.Ct. 1684).
Plaintiffs’ efforts to persuade the PBA to file a criminal complaint do not manifest the sort of public concern evident in allegations of public corruption. See Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003). The harm alleged in this case affected only the Town’s police officers in the conditions of their employment. These conditions, unlike corruption, had no bearing on how the police department operated in its public enforcement of the law. Even though plaintiffs claim that their advocacy was on behalf of the entire PBA membership, their speech did not implicate First Amendment rights. As this court explained in Ruotolo v. City of New York, “[a] public employee may not transform a *654personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run. A generalized public interest in the fair or proper treatment of public employees is not enough.” 514 F.3d 184, 190 (2d Cir.2008) (internal quotation marks and citation omitted). We therefore conclude that the district court correctly entered summary judgment on plaintiffs’ First Amendment retaliation claim.
We have considered plaintiffs’ other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.
. We assume arguendo, as the district court did, that plaintiffs had a legitimate expectation of privacy when changing clothes in the subject locker room. See DeVittorio v. Hall, 589 F.Supp.2d 247, 257 (S.D.N.Y.2008).
. Our ruling, based on plaintiffs' failure to adduce prima facie factual support for their claim, does not imply that their factual allegations, if proved, would constitute a violation of the Fourth Amendment. On that question, we express no view.
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*657SUMMARY ORDER
Ihab Tartir appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Lynch, /.). Tartir was convicted, after a jury trial, of two counts of conspiracy to commit marriage fraud, 8 U.S.C. § 1325(c), 18 U.S.C. § 371, and one count of aiding and abetting marriage fraud for the purpose of evading immigration laws, 8 U.S.C. § 1325(c), 18 U.S.C. § 2(a). The charges stemmed from Tartir’s involvement in organizing two sham marriages in 2006 and 2007 and from his legal representation of the non-citizen marriage participants in the application process for permanent residence cards. Tartir was sentenced principally to 24 months’ imprisonment. On appeal, Tartir contends that his conviction should be reversed because the district court improperly admitted under Rule 404(b) testimony from a cooperating witness about Tartir’s role with respect to similar sham marriages that took place from 2002 to 2004. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented' on appeal.
A district court’s decision to admit prior act evidence under Rule 404(b) is reviewed for abuse of discretion. United States v. Mejia, 545 F.3d 179, 206 (2d Cir.2008). The admission of such evidence is subject to harmless error analysis. United States v. Madori, 419 F.3d 159, 168 (2d Cir.2005).
As an initial matter, this issue has been waived due to the fact that trial counsel consented to the admission of the evidence challenged on appeal. During the final pretrial conference, defense counsel indicated that Tartir would not oppose admission of “404(b)-type evidence” during the government’s case in chief because Tartir planned to testify at trial and “one way or another, the matters are going to get put before the jury.” Counsel explained that his “basic philosophy” at trial is to “be as open as we possibly can” because “jurors do not favor lawyers employing technicalities at any stage.” Defense counsel did object at various points to the testimony about Tartir’s prior conduct, but the objections related to form and scope, not the admissibility of evidence of prior acts. Tartir has therefore waived his evidentiary claim. See United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995) (noting that if a party “consciously refrains from objecting [to an evidentiary decision] as a tactical matter, then that action constitutes a true “waiver,’ which will negate even plain error review”); see also United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.1991) (noting that where a defendant “is attempting to evade the consequences of an unsuccessful tactical decision,” appellate review is waived).
Putting the question of waiver to the side, the district court did not abuse its discretion in admitting testimony from the cooperating witness, Mohamed Mabrouk, concerning his interactions with Tartir between 2002 and 2004. In conspiracy cases, evidence of prior acts may be admitted as direct evidence of the charges where it supports the prosecution’s theory that a conspiracy took place. Mejia, 545 F.3d at 206; United States v. Diaz, 176 F.3d 52, 79 (2d Cir.1999) (noting that where a conspiracy is charged, “uncharged acts may be admissible as direct evidence of the conspiracy itself’ (citation and internal quotation marks omitted)). Mabrouk’s testimony about Tartir’s prior acts was admissible as direct evidence because it provided background related to his relationship with Tartir and was some evidence that a conspiracy existed.
Mabrouk’s testimony was also admissible under Rule 404(b). Tartir’s principal defense at trial was that he did not *658know that the marriages in question were fraudulent. Therefore, Mabrouk’s testimony about Tartir’s previous participation in similar marriage fraud schemes was relevant because it tended to show that Tartir had the requisite intent to support his conviction. Moreover, the evidence was corroborative of the government’s other evidence of knowing involvement in the scheme to evade immigration laws.
We have considered Tartir’s remaining contentions on appeal and find them to be without merit.
For the foregoing reasons, the judgment is AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Carol O. Obot appeals from the October 18, 2006 judgment of the United States District Court for the Western District of New York (Arcara, J.) dismissing her complaint without prejudice. We assume the parties’ familiarity with the underlying facts and the procedural history of the ease.
We review a district court’s dismissal of a complaint for lack of proper service for abuse of discretion. See Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir.2002). Federal Rule of Civil Procedure 4(h)(1) provides, in relevant part, that a corporation must be served either: (1) in the manner required by the law of the state in which the district court is located, Rule 4(h)(1)(A); or (2) by delivering a copy of the summons and complaint to an officer or “agent authorized by appointment or by law to receive service of process and — if the agent is one authorized by statute and the statute so requires — by also mailing a copy to the defendant,” Rule 4(h)(1)(B). Pursuant to Rule 4(m) “if the plaintiff shows good cause for the failure [to serve process within 120 days of the filing of the complaint], the court shall extend the time for service for an appropriate period.”
We discern no abuse of discretion in the district court’s determination that Obot failed to effect service of process under New York law. New York Business Corporation Law (“BCL”) § 306(b)(1) provides that “[s]erviee of process on the secretary of state as agent of a domestic or authorized foreign corporation shall be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee.” Obot’s service of process on the secretary of state in Buffalo did not comply with the statute’s requirements. See, e.g., Marine Midland Realty Credit Corp. v. Welbilt Corp., 145 A.D.2d 84, 537 N.Y.S.2d 669, 671-72 (3d Dep’t 1989) (finding that “[§ 306] provide[s] that delivery of process to the Secretary of State or his deputy or his designated agent must occur at the office of the Department of State in the City of Albany” and concluding that “the persons and place designated for service on the Secretary of State in [the statute] may be viewed as jurisdictional requirements with which there must be strict compliance”); Flick v. Stewart-Warner Corp., 76 N.Y.2d 50, 55, 556 N.Y.S.2d 510, 555 N.E.2d 907 (1990) (in addressing identical language contained in § 307, stating that “[s]ueh process must be served personally at the office of the Secretary of State in Albany”).
Obot’s attempt to serve Citibank by mailing the complaint to Citibank’s attorney and the “President and CEO” of Citibank did not effect service under New York Civil Practice Law and Rules (“CPLR”) § 311 or § 312-a. Section 311(a)(1) requires that personal service be made on a corporation’s officer or agent. Although § 312-a provides for service by mail, the plaintiff is required to send “by *660first class mail, postage prepaid, a copy of the summons and complaint ... together with two copies of a statement of service by mail and acknowledgment of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.” Service under this section is not complete until the signed acknowledgment of receipt is mailed back to the sender. See § 312-a(b). Obot has not contended that she included with the complaint “a statement of service by mail and acknowledgment of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender,” and, even if she had, neither Citibank’s attorney nor the “President and CEO” of Citibank returned a signed acknowledgment. Under New York law, therefore, the service was not complete and Obot was obligated to use another means of service. See Buggs v. Ehrnschwender, 968 F.2d 1544, 1549 (2d Cir.1992) (finding defendant had not been properly served where he did not return the service acknowledgment).
Finally, the district court did not abuse its discretion in dismissing the complaint without prejudice rather than extending the time for service as Obot has failed to “advance some colorable excuse for neglect,” Zapata v. City of New York, 502 F.3d 192, 196, 198 (2d Cir.2007), and, although she has been aware since February 2005 that service was deficient, she has not requested an extension of time for service.
We have considered all of Obot’s arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Defendant Avile was convicted, following a guilty plea, of one count of conspiring to distribute heroin, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; one count of distributing heroin, see id. § 841(a)(1), (b)(1)(A); and one count of carrying, brandishing, and possessing a firearm during and in relation to the heroin trafficking offenses, see 18 U.S.C. § 924(c)(l)(A)(ii),2 and was sentenced principally to concurrent terms of 131 months’ imprisonment on the heroin-distribution counts and a consecutive term of 84 months’ imprisonment on the § 924(c)(l)(A)(ii) count. On appeal, Avile contends that his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were violated by the inclusion of the § 924(c)(l)(A)(ii) count of conviction in a superseding indictment filed on October 31, 2006, more than a year after a complaint charged Avile with possession of a firearm during a drug offense, see id. § 924(c) (1) (A) (i). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Speedy Trial Claim
Avile’s Speedy Trial Act claim fails in light of his guilty plea. “A knowing and voluntary guilty plea waives all nonjurisdictional defects in the prior proceedings,” including a claimed speedy trial violation, “unless the defendant specifically reserves the right to appeal” the issue in writing, having obtained “approval of the court and the consent of the government.” United States v. Coffin, 76 F.3d 494, 496-97 (2d Cir.1996). Because Avile made no such reservation of his speedy trial claim and does not challenge the validity of his plea, we deem this claim waived.
2. Sentencing Remand
The government, on its own initiative, notes that the 84-month consecutive sentence imposed under 18 U.S.C. § 924(c)(1)CA)(ii) was inconsistent with our *662recent decision in United States v. Williams, 558 F.3d 166 (2d Cir.2009), and consents to remand for resentencing. We therefore remand for that purpose.
3. Conclusion
For the foregoing reasons, the judgment of conviction is AFFIRMED in part, and the case is REMANDED for resentencing in light of United States v. Williams, 558 F.3d 166 (2d Cir.2009).
. The judgment references subsection (i) of 18 U.S.C. § 924(c)(1)(A), but it is apparent from the record that subsection (ii), which addresses the ''brandish[ing]” of a firearm and imposes a seven-year mandatory minimum sentence, was the provision at issue here. See Plea Tr. at 20-22 (noting brandishing element); Sentencing Tr. at 4, 13 (referring to “7-year mandatory minimum” and imposing such a sentence). On remand and after providing any notice it considers appropriate, the district court may amend the written judgment as permitted by Fed.R.Crim.P. 36.
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OPINION
PER CURIAM.
Appellant Daniel L. Spuck, a pro se prisoner, appeals from the District Court’s order granting Defendants’ motions to dismiss. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
I.
On November 6, 2007, Spuck, who is incarcerated at the State Regional Correctional Facility at Mercer (“SRCF-Mercer”), filed a civil rights action under 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Named Agents of Federal Bureau *729of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).1 Spuck named the following Defendants in his complaint: Thomas Ridge, Former Governor of the Commonwealth of Pennsylvania (“Ridge”); the Commonwealth of Pennsylvania (“Commonwealth”); Paul Stowitsky, Superintendent at SRCF-Mercer (“Stowitsky”); the Pennsylvania Attorney General (“AG”); Pennsylvania Department of Corrections (“DOC”); and Robert V. Barth, Jr., Clerk of Courts for the United States District Court for the Western District of Pennsylvania (“Barth”).
In the complaint, Spuck alleged that around 1996, while he was imprisoned at SCRF-Mercer, Defendants Ridge and the AG unlawfully permitted the DOC to change its policy regarding inmate furloughs, such that prison officials could no longer grant inmate furlough requests. Spuck further alleged that the policy which replaced it only allowed inmates residing in Community Corrections Centers (“CCC”) to be furloughed. As a result of the policy change, Spuck claims that his requests to be furloughed from SRCFMercer have been repeatedly denied, in violation of his constitutional rights.
After Spuck filed his complaint, the Defendants moved to dismiss it under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 After reviewing the parties’ submissions, the District Court dismissed Spuck’s complaint as to all Defendants. Spuck filed a timely notice of appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal for failure to state a claim is plenary. Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir.1999). When considering a district court’s grant of a motion to dismiss under Rule 12(b)(6), we “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
III.
A. Ex Post Facto Claim
First, Spuck claimed that the 1996 changes in DOC policy have been applied to him retroactively to deny him the ability to obtain a furlough, in violation of the Ex Post Facto Clause contained in the United States Constitution.3 As the District Court properly concluded, there is no ex post facto violation where the retroactively applied law does not make one’s punishment more burdensome, but merely creates a disadvantage. See Hameen v. Delaware, 212 F.3d 226, 236 (3d Cir.2000). Spuck’s sentence was not lengthened or made more severe by the new guidelines. The mere fact that furlough opportunities are now not available to him does not make his punishment more onerous. Accordingly, the District Court properly dismissed this claim.
*730B. Due Process Claims
Spuck also alleged that Defendant Stowitsky has unlawfully denied him prerelease and has refused to place him in a CCC (in order to be eligible for a furlough) because Spuck has failed to complete prescriptive programming. However, an inmate does not have an inherent constitutional right to determine the place of his confinement, nor does he have a state-created liberty interest which allows him to be incarcerated at an institution of his choosing. See Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Moreover, inmates do not have a constitutional right to be furloughed. See Bowser v. Vose, 968 F.2d 105, 106-07 (1st Cir.1992) (“It is clear that the denial of a furlough implicates no inherent liberty interest”). Thus, Stowitsky’s decision to deny Spuck pre-release and/or placement in a CCC does not implicate any pi'otected liberty interest.4
C. Denial of Access to Courts Claim
Next, Spuck claimed that Defendant Barth unlawfully denied him access to the courts: “[Barth] failed to file or return the Plaintiffs writ of habeas corpus petition appealing the November 1, 2005, Order from the Pennsylvania Supreme Court challenging Ex Post Facto Clause violations involving furloughs from prisons in Pennsylvania.” (See Plaintiffs Complaint at Section IV.C). While inmates have the right to adequate, effective, and meaningful access to the courts, see Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court has restricted who may bring an access-to-courts claim. See Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In Lewis, the Court held that in order to state a claim for denial of the right of access to the courts, a plaintiff must show actual injury. Id. at 351-2, 116 S.Ct. 2174. In this case, Spuck had to have demonstrated that he lost the ability to present an “arguably actionable” claim. Id.
We agree with the District Court that Spuck was unable to meet that requirement. The action that he claims Barth denied him the ability to pursue was a habeas corpus action wherein he raised the identical Ex Post Facto challenge to the DOC’s furlough policy that had been previously raised and rejected on the merits in his prior habeas proceeding. Accordingly, the District Court correctly dismissed this claim against Defendant Barth.
D.Claim against Defendant Ridge
Finally, the District Court properly dismissed Spuck’s complaint as to Defendant Ridge. Spuck failed to effect service of the complaint as to Ridge. A plaintiff is responsible for serving a complaint within 120 days after the complaint is filed with the court. Fed.R.Civ.P. 4(c)(1), (m). The District Court’s docket indicates that Spuck filed his action on November 6, 2007, but the docket does not reflect that Ridge was ever served with the complaint during the span in which the parties litigated the case. Thus, the claims against Ridge are appropriately denied on those grounds.
As Spuck’s appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Spuck’s “motion to waive or suspend 20% deduction of appellant’s inmate account and court appointment of counsel (pro bono)” is also denied. See Porter v. Dep’t of Treasury, 564 F.3d 176, 179-80 (3d Cir. *7312009); Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir.1993).
. Because Defendant Barth is a federal employee, the District Court construed the claims against him as brought under Bivens.
. Defendant Ridge did not file a motion to dismiss as he was never served with the complaint.
.Spuck previously raised this identical claim in a habeas corpus action that he initiated in the District Court in February 2005, which was denied on the merits. See Spuck v. Desuta, et al., No. 05-85J, 2006 WL 1428249, 2006 U.S. Dist. LEXIS 32094 (W.D.Pa. May 22, 2006).
. Spuck's related claim — that Stowitsky unlawfully demoted him to level 2 custody — was also correctly dismissed as this claim similarly failed to implicate a protected liberty interest. See Griffin v. Vaughn, 112 F.3d 703, 705-06 (3d Cir.1997).
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SUMMARY ORDER
Petitioner Bing Xin Lin, a native and citizen of China, seeks review of a September 11, 2008 order of the BIA affirming the March 2, 2007 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bing Xin Lin, No. A 200 125 684 (B.I.A. Sept. 11, 2008), aff'g No. A 200 125 684 (Immig. Ct. N.Y. City Mar. 2, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements it, we review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Lin has waived any argument that she has a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42); Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Moreover, the agency properly found that Lin failed to *667demonstrate that she suffered past persecution in undergoing mandatory gynecological examinations. As Lin observes in her brief, “when it has been determined that an alien has not suffered a per se form of persecution, i.e., an abortion or sterilization ... she must establish that: (1) she resisted China’s family planning policy; (2) she has been persecuted (or has a well-founded fear of persecution); and (3) the persecution was or would be because of the respondent’s resistance to the policy.” Matter of M-F-W- & L-G-, 24 I. & N. Dec. 633, 637 (BIA 2008). In Matter of M-F-W-, the BIA analyzed the question, analogous to that presented in this case, of whether an applicant’s forcible IUD insertion constituted persecution. 24 1. & N. Dec. at 642. The BIA explained that it did not “intend to imply that having an IUD inserted can never be found to be persecutive. However, to rise to the level of harm necessary to constitute persecution, the insertion of an IUD must involve aggravating circumstances.” Id. We agree with Lin that the BIA’s analysis in Matter of M-F-W- is applicable here, because mandatory gynecological examinations are not a per se form of persecution. See id. at 637. However, we are not persuaded by Lin’s argument that the gynecological examinations she endured were conducted under “aggravated circumstances.” In denying Lin’s claims for relief, the BIA relied on Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d at 198 (2d Cir.2005), stating that “while a free a society respects physical autonomy, absent more, we cannot conclude that the required examinations in this case evidence past persecution.” Lin argues that the gynecological examinations that she underwent were highly abhorrent to her “deeply held beliefs” and that she felt shame, embarrassment, and humiliation during the examinations. There is no evidence, however, that the examinations were performed under “aggravating circumstances” sufficiently harmful to rise to the level of persecution described in Matter of M-F-W-. 24 I. & N. Dec. at 641-42 (explaining that “examples of routine acts implementing China’s family planning policy that are lacking in harm sufficient to constitute persecution include ... regularly required gynecological exams, and other routine fines and threats for disobeying the policy”). Were we to hold otherwise, virtually any female asylum applicant from China would establish that she suffered past persecution solely by having attended a mandatory gynecological examination despite her opposition to such examinations. The Immigration and Nationality Act does not “anticipate or require such a result.”2 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Lin argues, for the first time, that she is entitled to relief on account of her membership in the particular social group of "all women in China over the age of 18 who refuse to submit to mandatory gynecological examinations due to their belief that such examinations are abhorrent to their physical integrity.” We decline to consider Lin’s argument because she failed to exhaust it before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
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SUMMARY ORDER
Bhupendrakumar Ambalal Patel, a native and citizen of India, seeks review of the BIA’s order affirming Immigration Judge Sandy Horn’s (the “IJ”) decision, which denied Patel’s motion to reopen his removal proceedings. In re Bhupendra-*669kumar Patel, No. A73-604-399 (B.I.A. Nov. 29, 2006), aff'g No. A73-604-399 (Immig. Ct. N.Y. City June 12, 2006). The BIA upheld the IJ’s decision on the grounds that Patel had not adequately complied with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.1988), aff'd sub nom. Lozada v. INS, 857 F.2d 10 (1st Cir.1988). We assume the parties’ familiarity with the underlying facts, issues on appeal and procedural history of the case. We review an agency’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005)
On appeal, Patel argues that his former counsel’s ineffective assistance at the initial proceeding resulted in the IJ granting Patel voluntary departure, rather than the opportunity to proceed with his other applications for relief. In order to prevail on an ineffective assistance of counsel claim, a petitioner must comply with the procedural requirements set forth in Lozada. See Twum v. INS, 411 F.3d 54, 59 (2d Cir.2005). While we do not require “slavish adherence” to Lozada’srequirements, see Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir.2007), our “review on the merits may be conditioned on substantial compliance with the reasonable requirements set forth in Lozada.” Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.2005). Patel acknowledges that he has not notified his former counsel of the ineffective assistance of counsel allegations, nor has he given his former counsel the opportunity to respond to these allegations, as Lozada requires. Patel also acknowledges that he has not filed a disciplinary complaint against his former counsel. However, Patel submits that the IJ incorrectly denied him access to his case file, preventing him from reviewing the record before confronting his former attorney.
We cannot say that the BIA abused its discretion because Patel, represented by new counsel before the BIA, did not comply with two of the three Lozada requirements. Furthermore, Patel’s excuse for failing to comply with Lozada does not suffice. Even taking into account the fact that Patel did not receive a copy of the record of his first hearing, which the BIA found was the fault of Patel’s new counsel, Patel’s failure to comply with Lozada is not excused because he could have contacted his former attorney and filed a disciplinary complaint even without the formal record. Without more, we see no abuse of discretion.1
We have considered Patel’s remaining contentions and find them to be without merit.
For the foregoing reasons, the petition for review is DENIED.
. We note, without expressing any opinion on the merits, that in support of Patel's ineffective assistance of counsel claim against his former attorney, Patel may still be able to comply with Lozada by filing another motion to reopen based upon his current counsel's failure to comply with Lozada.
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OPINION
PER CURIAM.
Frankie Thomas appeals pro se from an order of the United States District Court for the Middle District of Pennsylvania dismissing his petition for Writ of Audita Querela as an improper attempt to circumvent the prior authorization requirement for second or successive motions pursuant to 28 U.S.C. § 2255. We will summarily affirm.
In 1997, Thomas was sentenced to a total of 322 months’ imprisonment upon conviction for armed bank robbery and carrying a firearm in relation to a crime of violence. We affirmed Thomas’s convictions and sentence on appeal. See United States v. Thomas, No. 97-7387, 149 F.3d 1166 (judgment entered March 13, 1998). The District Court denied Thomas’s first motion to vacate sentence under 28 U.S.C. § 2255 and we declined to issue a certificate of appealability. See United States v. Thomas, No. 99-3050 (order entered August 12, 1999). He filed a second § 2255 motion in 2001, which the District Court denied as an unauthorized second or suc*671cessive motion. Thomas did not file an appeal. Thomas submitted two applications under 28 U.S.C. § 2244 seeking our authorization to file a second or successive § 2255 motion, each of which was denied. In 2005, Thomas filed a § 2241 petition, which the District Court dismissed for lack of jurisdiction; this Court dismissed the appeal. In 2007, he filed a motion raising claims pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255, which the District Court dismissed. We summarily affirmed the dismissal of the § 3582(c)(2) claims as frivolous and declined to issue a certificate of appealability as to the § 2255 claims based on Thomas’s failure to make a substantial showing of the denial of a constitutional right. See United States v. Thomas, No. 07-1502 (3d Cir. Jul. 17, 2007).
In 2008, Thomas challenged his sentence under the All Writs Act, 28 U.S.C. § 1651, by filing a petition for writ of audita quere-la in the District Court. He claimed that he should be re-sentenced under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the District Court wrongly treated the guidelines as mandatory at his sentencing. The District Court dismissed the petition, holding that the proper means of challenging his sentence was through a petition filed under § 2255. The District Court noted, however, that Thomas was required to seek our permission before he could file a second or successive § 2255 motion in the District Court. Thomas filed this timely appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Upon de novo review of the record and careful consideration of Thomas’s submissions on appeal, we conclude that no substantial question is presented on appeal and that summary action is warranted. See LAR 27.4 and I.O.P. 10.6.
After the District Court dismissed Thomas’s petition, we decided Massey v. United States, 581 F.3d 172 (3d Cir.2009). In Massey, the petitioner sought audita querela relief under the All Writs Act based on a Booker claim, after the District Court had denied § 2255 relief. We affirmed the District Court’s denial of the audita querela petition, holding that Massey’s sole means for raising his Booker claim was through § 2255. We emphasized that § 2255 is the means to collaterally attack a federal conviction or sentence, except in the rare instance, not present in Massey, where § 2255 is determined to be “inadequate or ineffective.” Id. at 174. Here, as in Massey, Thomas’s inability to satisfy the AEDPA’s gatekeeping requirements for filing a second or successive § 2255 motion to vacate his sentence does not render § 2255 “inadequate or ineffective,” and, thus, he may not seek audita querela relief. Massey, 581 F.3d at 174.
Accordingly, we will affirm the District Court’s order dismissing Thomas’s petition for a writ of audita querela.
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IKUTA, J.,
dissenting.
Although the ALJ made two factual errors in stating his reasons for discrediting the testimony of Kennedy and Dr. Bothamley (one of his treating physicians), our analysis cannot stop there; we must still determine “whether the ALJ’s decision remains legally valid, despite such error.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.2008); see also Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.2004). In this case, the ALJ’s errors were harmless. The ALJ identified specific, cogent facts supporting its credibility decision, such as the disparity between Kennedy’s statements and his medical records. Moreover, the ALJ’s reasons for rejecting Dr. Bothamley’s disability conclusion were specific, legitimate, and supported by substantial evidence, including the ALJ’s determination that Dr. Bothamley’s treatment notes were inconsistent with his written statement regarding Kennedy’s level of disability. Because the ALJ’s reasoning, other than the narrow misstatements about Kennedy’s ibuprofen use and lumbar-spine degeneration, were adequately supported by substantial evidence in the record, “the ALJ’s error ... was inconsequential to the ultimate nondisability determination.” Carmickle, 533 F.3d at 1162 (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.2006)). Because the errors identified by the majority were harmless, I would affirm the order of the district court.
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MEMORANDUM **
Rita M. Hymes and Donald L. Hymes appeal pro se from the district court’s summary judgment in an action brought by the United States to reduce to judgment unpaid income taxes, penalties, and interest assessed against appellants and to foreclose tax liens against certain real property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Hughes v. United States, 953 F.2d 531, 541 (9th Cir.1992), and we affirm.
The district court properly granted summary judgment to the United States because the Hymes failed to controvert Certificates of Assessments and Payments demonstrating that the assessments were properly made. See id. at 540 (explaining that Certificates of Assessments and Payments are “probative evidence in and of themselves and, in the absence of contrary evidence, are sufficient to establish that ... assessments were properly made.”); see also 26 U.S.C. § 6322 (providing that tax liens arise at the time of assessment and continue until the liability is satisfied).
Appellants’ arguments on appeal are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON MOTION
PER CURIAM.
ORDER
Willie E. Turner responds to the court’s order directing him to show cause why his appeal should not be dismissed as untimely. The Secretary of Veterans Affairs moves to dismiss Turner’s appeals. Turner opposes.
The Board of Veterans’ Appeals denied Turner’s application to reopen claims for service connection for a lumbar spine condition and chronic myalgia in his right hip. Before the United States Court of Appeals for Veterans Claims, the Secretary conceded that the Board had not ensured compliance with the duty to assist and requested that the Board decision be vacated and the case remanded. On January 5, 2009, the Court of Appeals for Veterans Claims agreed with the Secretary and vacated the Board decision and remanded the case to allow the Board to seek to obtain records identified by Turner in support of his case. Turner filed two notices of appeal seeking review of that decision. The first notice of appeal, 2009-7084, was filed directly with the United States Court of Appeals for the Ninth Circuit and the second, 2009-7079, was filed with the clerk of the United States Court of Appeals for Veterans Claims and transmitted to this court in the usual course.
The Secretary argues that Turner’s appeal should be dismissed because it is untimely and because Turner seeks review of a nonfinal remand order that is not appeal-able pursuant to Williams v. Principi, 275 F.3d 1361 (Fed.Cir.2002). Turner asserts that he timely filed his appeal.
A notice of appeal of a judgment of the Court of Appeals for Veterans Claims must be filed within 60 days of entry of judgment in order to be timely. See 38 U.S.C. § 7292(a); Fed. R.App. P. 4(a)(1). The time limit for filing a notice of appeal is jurisdictional, Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)), and may not be waived, Oja v. Army, 405 F.3d 1349, 1358 (Fed.Cir.2005) (time provisions of Fed.R.App. P. 4(a) are not subject to equitable tolling).
The notice of appeal in 2009-7079 was filed on March 13, 2009, 67 days after entry of judgment. Thus, it is untimely and must be dismissed. The timeliness of appeal no.2009-7084 is less clear. Turner submits United States Postal Service correspondence and a receipt showing that a package he sent to the Ninth Circuit was delivered on March 5, 2009. The notice of *563appeal is stamped with a “received” date of March 6, 2009. If the notice of appeal was filed on either of those dates, it would be timely. However, the appeal was docketed as having been filed on March 11, 2009, more than 60 days after entry of judgment. Thus, there is conflicting evidence about the filing date of this appeal. We need not decide whether appeal no.2009-7084 is timely, however, because in any event, in both appeals Turner seeks review of a nonfinal remand and thus we dismiss.
“This court typically will not review remand orders by the Court of Appeals for Veterans Claims ‘because they are not final judgments.’” Williams, 275 F.3d at 1364 (citation omitted). We will review remand orders of the Court of Appeals for Veterans Claims “only if three conditions are satisfied: (1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings, or (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and (3) there must be a substantial risk that the decision would not survive a remand.” Id.
In this case, the criteria set forth in Williams are not met. The January 5 decision of the Court of Appeals for Veterans Claims does not finally resolve any legal issues that are separate from the remand proceedings, that will govern the remand proceedings, or that would, if reversed, render the remand proceedings unnecessary. Thus, we must dismiss. In the event that, on remand, Turner does not prevail before the Board and the Court of Appeals for Veterans Claims, he may file a new notice of appeal in the Court of Appeals for Veterans Claims seeking review of that court’s final judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted. The appeals are dismissed.
(2) All pending motions are moot.
(3) Each side shall bear its own costs.
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SUMMARY ORDER
Plaintiff-Appellant Dov Levine appeals from the entry of judgment after a jury trial in the United States District Court for the Southern District of New York (Fox, Mag. J.). Levine claims that Reader’s Digest Association, Inc. (“RDA”) is liable for discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”) in connection with the conduct of its Swiss subsidiary, Das Beste de Reader’s Digest (“Das Beste”). The court below dismissed the retaliation claim as moot prior to trial, and the jury subsequently returned a verdict finding that RDA and Das Beste did not constitute a “single employer” such that RDA could be held liable for Das Beste’s employment-related acts. Based on evidence adduced at trial, the court also granted RDA’s post-trial motion to dismiss the complaint as untimely. Levine now seeks reinstatement of the retaliation claim, a new trial on the age discrimination claim due to asserted errors in the jury instructions, and a reversal of the post-trial dismissal of his complaint.
We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
First, taken as a whole, the trial court’s instruction to the jury regarding the single employer doctrine did not mislead the jury as to the correct legal standard. See Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994) (noting that a jury instruction is erroneous if it “misleads the jury as to the correct legal standard or does not adequately inform the jury on the law”). The trial court properly instructed the jury as to the four factors relevant to determining joint liability for discrimination. See Murray v. Miner, 74 F.3d 402, 404 (2d Cir.1996) (listing the factors). With respect to the most important of the four factors, whether there was centralized control of labor relations, the court advised the jury that the “critical” question was “what entity made final decisions regarding employment matters related to the person claiming discrimination.” Far from being misleading, this language is taken directly from our precedent. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.1995) (noting with approval the Fifth Circuit’s holding that “the critical question to be answered” with regard to the centralized control criterion is “what *604entity made the final decisions regarding employment matters related to the person claiming discrimination?”) (internal quotation marks omitted); see also Murray, 74 F.3d at 405. Moreover, the instructions did not encourage the jury to place undue weight on any one factor, such as what entity made the final termination decision, because the court advised that “[n]o one factor is determinative” in order to find joint liability. See Murray, 74 F.3d at 404-05.
Second, the court appropriately dismissed Levine’s retaliation claim, because the primary harm alleged in that claim — the loss of the 90,000 Swiss francs in severance funds and the incurrence of attorney’s fees — has already been redressed by the Swiss courts. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (emphasizing that actionable retaliation must involve materially adverse injury or harm). Levine asserts for the first time in his reply brief on appeal that he has recovered only 19,862 of the 48,248 Swiss francs he spent on attorney’s fees in connection with the Swiss case. Levine’s eleventh-hour and unsubstantiated assertion that he has not recovered the entirety of his legal fees related to the Swiss proceedings does not command reinstatement of the retaliation claim.
Finally, even if Levine could prevail on his arguments regarding the jury charge and the retaliation claim, the complaint was nonetheless properly dismissed as time-barred. Levine’s trial testimony indicates that the letter he received on October 29, 2003 constituted a definite notice of termination. See Economu v. Borg-Warner Corp., 829 F.2d 311, 315 (2d Cir.1987) (internal quotation marks omitted); see also id. (instructing that in making timeliness determinations, courts are to identify the date on which the employer established an official position [as to the termination] and made that position known to the employee). Levine did not file his EEOC charge until May 12, 2004,196 days after receiving the termination letter. In light of the additional evidence revealed at trial, the court below was entitled to reach a different result with respect to the timeliness analysis than the district court did in ruling on the motion to dismiss and the summary judgment motion. See Corporacion de Mercadeo Agricola v. Mellon Bank Int’l, 608 F.2d 43, 48 (2d Cir.1979) (noting that where a party renews a motion for summary judgment after further development of the record, the law of the case “may be departed from in the sound discretion of the district court,” since “further reflection may allow a better informed ruling in accordance with the conscience of the court”).
We have examined Levine’s remaining contentions on appeal and find them to be without merit.
For the foregoing reasons, the judgment is AFFIRMED.
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SUMMARY ORDER
Yemisi Akinyemi, an American citizen of Nigerian origin, appeals from a judgment dismissing her employment discrimination complaint against her former employer, United States Customs and Border Protection (“CBP”), a component of the Department of Homeland Security, pursuant to a *607jury verdict. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.
We review the district court’s challenged evidentiary rulings for abuse of discretion and hold that the district court acted well within its discretion in making each of these rulings. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). First, the district court properly excluded evidence concerning the misconduct and subsequent discipline of fellow employee, Jolanta Gluba, because Gluba’s negligence was not of comparable seriousness to Akinyemi’s intentional misconduct. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 567-68 (2d Cir.2000) (affirming grant of summary judgment where plaintiff was terminated for a physical assault, her putative comparator was not terminated for a verbal assault). Second, the district court properly excluded proof concerning nine unnamed comparators who were not identified by race or national origin. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000) (holding that in order to create an inference of discrimination, differently treated comparators must not be members of the plaintiffs protected group). Although Akinyemi subsequently offered evidence of the race of some of the comparators, the district court properly adhered to the law of the case because Akinyemi offered no proof that this evidence was not available earlier and gave the court no other reason to deviate from its prior ruling. See ATSI Commc’ns v. Shaar Fund, Ltd., 547 F.3d 109, 112 n. 3 (2d Cir.2008). Testimony by one CBP officer that there had been profiling of Nigerian passengers but not of employees was also properly excluded because the risk of prejudice and the time required for both parties to offer evidence on this point far outweighed its tangential relevance to employment discrimination. See Fed.R.Evid. 403. Finally, portions of an investigative report related to Gluba and the unnamed comparators were properly excluded for the same reasons that any direct evidence concerning these individuals was properly excluded.
Based on a footnote in the district court’s summary judgment decision indicating that, even though Akinyemi’s case survived summary judgment, it was weak, and one colloquy during trial, Akinyemi accuses the district court of bias. “Reversal for judicial bias is appropriate only where an examination of the entire record demonstrates that the jurors have been impressed with the trial judge’s partiality to one side to the point that this became a factor in the determination of the jury.” United States v. Mulder, 273 F.3d 91, 109 (2d Cir.2001) (quoting United States v. Salameh, 152 F.3d 88, 128 (2d Cir.1998)). The jury did not see the summary judgment ruling and accordingly could have formed no perception based on it. And the colloquy was both not improper and quite short in the context of the entire trial.
Finally, there was no error in the district court’s refusal to give two charges that Akinyemi requested. A charge allowing the jury to draw an adverse inference against CBP from a non-party witness’s invocation of her Fifth Amendment privilege against self-incrimination was not required because (1) the witness, although an employee of CBP, was a very low level employee; (2) the witness had no control over the key facts and issues in the litigation; (3) there was no showing that the witness was “pragmatically a noncaptioned party in interest”; and (4) there was insufficient information to determine that an adverse inference against CBP would have been “trustworthy under all of the circumstances.” LiButti v. United States, 107 F.3d 110, 123-24 (2d Cir.1997). Akinyemi also requested that the court instruct the *608jury that it could draw an adverse inference from the non-production of a document that a CBP witness believed — but was not certain — existed. Because Akinyemi offered no proof that (1) any such document was destroyed or encompassed within a discovery request that she made but not produced, or (2) CBP had a culpable state of mind with respect to any action or inaction concerning the putative document, the district court’s refusal was proper. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002).
We, therefore, affirm the judgment of the district court.
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SUMMARY ORDER
Appellant George W. Drance, pro se, appeals the district court’s order denying his motion for reconsideration of the district court’s March 2007 order granting the defendants’ motion to dismiss and denying Drance’s cross-motion to amend his 42 U.S.C. §§ 1983 and 1985 complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the ease, and the issues on appeal.
An appeal from an order denying a Rule 60(b) motion filed more than ten days after entry of the judgment brings up for review only the order denying the motion. See “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 122 n. 5 (2d Cir.2008) (citation omitted). The appeal “does not permit the appellant to attack the underlying judgment for error that could have been complained of on direct appeal.” Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 (2d Cir.1976) (citation omitted). Relief pursuant to Rule 60(b) motions is available only in “exceptional circumstances.” See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008). We review rulings on Rule 60(b) motions for abuse of discretion. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998). “A district could would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. In this case, Drance filed his motion for reconsideration on April 2, 2007, more than ten days after the entry of judgment on March 15, 2007. Aceordingly, only the denial of the Rule 60(b) motion is properly before this Court for review. See Phillips v. Corbin, 132 F.3d 867, 869 (2d Cir.1998).
As conceded by the Defendants, because Drance was served with the Report and Recommendation on February 1, 2008, he had until February 21, 2008 (taking into account intermediate weekends, Washington’s Birthday, and three days for mail service) to file his objections. See Fed.R.Civ.P. 6(a), (d) and 72(b). Accordingly, Drance did not waive his right to appellate review of the magistrate judge’s report and recommendation. See, e.g., Small v. Sec’y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989) (noting that failure to timely object to a magistrate judge’s report and recommendation may “operate as a waiver of the right to appellate review of the district court’s adoption of the magistrate’s recommendation”). Nevertheless, Drance has not made any argument on appeal as to why his motion for reconsideration should have been granted, or why the district court abused its discretion in denying his motion. Instead, Drance merely contests the district court’s entry of an order adopting the magistrate judge’s January 2008 Report prior to his having filed his objections. In its decision granting the Defendants’ motion to dismiss, the district court discussed Drance’s prior action, and properly found that it was precluded by the doctrine of collateral estoppel. Drance has not submitted any newly discovered evidence or made any argument that the district court based its ruling on an erroneous view of the law or facts. Accordingly, the district court did not abuse its discretion in denying Drance’s motion for reconsideration.
*610To the extent Drance intends to appeal the March 2007 judgment dismissing his complaint, as discussed above, we lack jurisdiction to review the judgment because his motion for reconsideration was filed more than ten days after the entry of judgment.
For the foregoing reasons, the order of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-appellant Carol F.C. Paladino, a former letter carrier for the United States Postal Service (“USPS”), appeals the December 3, 2007 judgment of the United States District Court of the Eastern District of New York (Bianco, J.), granting summary judgment to defendant-appellee, John E. Potter, Postmaster General of the USPS, and dismissing Paladino’s complaint alleging employment discrimination. See Paladino v. Potter, No. 06-CV-5930, 2007 WL 4255247 (E.D.N.Y. Nov. 29, 2007). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
We review a grant of summary judgment de novo, examining the facts in the light most favorable to the non-moving party and resolving all factual ambiguities in that party’s favor. Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006).
We affirm the district court’s conclusion that Paladino failed to timely exhaust her administrative remedies vrithin the requisite 45-day period, see Pauling v. Sec’y of the Dep’t of Interior, 160 F.3d 133, 133-34 (2d Cir.1998), because it is undisputed that Paladino initiated contact with the EEO counselor on March 28, 2006, more than 45 days after the latest alleged discriminatory act on December 2, 2005.
We also agree with the district court that Paladino has not established that the circumstances of this case warrant equitable tolling. Equitable tolling requires a showing by plaintiff that she “(1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80-81 (2d Cir.2003) (quotation marks omitted). This standard is not met here, given that Paladino, who was familiar with the EEO process, and was represented by counsel, had signed the pre-complaint counseling form on February 14, 2006 but failed to forward it to the EEO office until March 28, 2006.
Finally, we reject Paladino’s arguments that the 45-day period should be tolled or did not start to run until the grievance proceedings were completed. See Del. State Coll. v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (“[P]endency of a grievance, or some other method of collateral review of an employ*615ment decision, does not toll the running of the [EEO] limitations periods.”); Alleyne v. Am. Airlines, Inc., 548 F.3d 219, 222 (2d Cir.2008) (“ ‘The proper focus for calculating the limitations period is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.’” (alterations omitted) (quoting Ricks, 449 U.S. at 258, 101 S.Ct. 498)).
Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
This appeal seeks review of the September 10, 2008, order of the District Court for the Southern District of New York (Shirley Wohl Kram, District Judge), prohibiting disclosure of documents that Defendant-Appellee National Association of Securities Dealers (“NASD”) turned over to Plaintiff-Appellant Standard Investment Chartered, Inc. (“Standard”) during discovery in litigation concerning a challenge to the consolidation of NASD and the New York Stock Exchange.1 The protective order decision was initially considered in a ruling issued September 26, 2007, see Standard Investment Chartered, Inc. v. National Ass’n of Securities Dealers, Inc., 621 F.Supp.2d 55 (S.D.N.Y.2007) (“Standard I ”), and considered again, after supplemental briefing, in a ruling dated January 23, 2008, see Standard Investment Chartered, Inc. v. National Ass’n of Securities Dealers, No. 07 Civ. 2014, 2008 WL 199537 (S.D.N.Y. Jan. 22, 2008) (“Standard II ”), prior to the formal ruling of September 10, 2008, which is the immediate subject of this appeal. We were advised at oral argument that the parties have narrowed their dispute so that what remains at issue is protection only for certain financial data contained in correspondence between NASD and the Internal Revenue Service (“IRS”). As to this data, we affirm the order of the District Court. We assume the parties’ familiarity with the facts and procedural developments in this litigation.
Although the protective order was entered after the District Court dismissed the underlying action, the Court retained jurisdiction to “dispose of material in its files as it thinks appropriate.” Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir.2004).
The District Court properly recognized that the normal burden upon the proponent of a protective order to establish good cause for protection, see id. 377 F.3d at 142, is significantly enhanced with respect to “judicial documents,” see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.2006), as to which “a common law presumption of access attaches,” id. We have described “judicial documents” as those that are “ ‘relevant to the performance of the judicial function,’ ” id. 435 F.3d at 119 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995)), but we have also said that the monitoring of the judicial function is not possible without access to “documents that are used in the performance of Article III functions,” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.1995) (“Amodeo II ”) (emphasis added). In the pending case, the District Court considered the documents at issue to be judicial documents, and we will assume that this conclusion was correct for purposes of this appeal. The District Court also recognized the extra force in favor of disclosure supplied by the qualified First Amendment right of access that we discussed in Lugosch, 435 F.3d at 120. However, Lugosch pointed out that even this qualified First Amendment right of access “does not end the inquiry.” Id. Analogizing to the courtroom closure context, we observed that “ ‘[documents may *617be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ ” Id. (quoting In re New York Times, 828 F.2d 110, 116 (2d Cir.1987)).
After carefully considering NASD’s reasons for protection and Standard’s reasons for disclosure, the District Court concluded that NASD had justified protection of information that would subject it to “financial harm,” Standard II, 2008 WL 199537, at *10, and that redaction of only the financial data in the IRS correspondence would satisfy the narrow tailoring requirement. The Court relied on the reasons discussed in Part II.C.2.b of its September 2007 opinion, reasons that in turn relied on the reasons discussed in Part II.C.2.a of that opinion dealing with Fairness Opinion Documents (no longer at issue). The Court accepted NASD’s contention that “an outsider with knowledge of the final terms of the Consolidation could, upon viewing the facts and figures in NASD’s records, use that information to deduce NASD’s negotiation tactics.” Id. at *7, and stated that “[disclosure could cause NASD significant competitive disadvantage,” id. at *8. The District Court noted that the protected information “sheds almost no light on either the substance of the underlying proceeding or the basis for the Court’s decision.” Id. “Where testimony or documents play only a negligible role in the performance of Article III duties, the weight of the presumption is low and amounts to little more than a prediction of public access absent a countervailing reason.” Amodeo II, 71 F.3d at 1050. These factual findings are not clearly erroneous.
The District Court concluded “that NASD’s interest in protecting confidential business information outweighs the qualified First Amendment presumption of public access.... ” Standard II, 2008 WL 199537, at *8. To the extent that the Court’s balancing of NASD’s interests in protection against Standard’s interests in disclosure is reviewed for abuse of discretion, see Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir.1992), we see no abuse of that discretion. Even upon de novo review, arguably appropriate in light of First Amendment considerations, we would still affirm the District Court, given the limited public, as distinguished from private, interest in disclosure on the facts of this case.
We have considered all of Standards contentions and conclude that they lack merit. Accordingly the District Court’s decision to protect from disclosure the redacted financial data in the IRS correspondence is affirmed.
. An appeal from the District Court’s dismissal of the lawsuit for failure to exhaust administrative remedies was dismissed as moot. See Standard Investment Chartered, Inc. v. National Ass'n of Securities Dealers, Inc., 560 F.3d 118 (2d Cir.2009).
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472523/
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SUMMARY ORDER
Plaintiff Panther Partners Inc. and all others similarly situated (“Panther Partners”) appeals from the March 8, 2008, 538 F.Supp.2d 662, and June 12, 2008, 2008 WL 2414047, orders of the District Court dismissing plaintiffs amended complaint with prejudice, denying leave to amend the complaint, and denying a motion for reconsideration. Plaintiff alleged that defendant Ikanos Communications, Inc. (“Ikanos” or “the company”), along with various directors and underwriters, negligently made false statements in connection with the company’s September 22, 2005 initial public offering and a March 17, 2006 secondary offering in violation of sections 11, 12, and 15 of the Securities Act of 1933. Defendants moved to dismiss the amended complaint for failure to state a claim on which relief can be granted, Fed.R.Civ.P. 12(b)(6), asserting that plaintiff failed to meet the plausibility standard for pleadings under Rule 8 of the Federal Rules of Civil Procedure set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The District Court granted this motion to dismiss and denied plaintiff leave to amend. The District Court then denied plaintiffs motion for reconsideration. On appeal, plaintiff asks our Court to consider the following questions: (1) whether the motion to dismiss was improperly granted because the District Court applied a particularity standard, rather than the plausibility standard set forth in Twombly, 550 U.S. 544, 127 S.Ct. 1955, and Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868; (2) whether the District Court erred when it denied plaintiffs motion for leave to amend the complaint; and (3) whether the District Court erred when it denied plaintiffs motion for reconsideration. We assume the parties’ familiarity with the facts and procedural history of this case.
Motion To Dismiss
This court reviews de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs’ favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also E & L Consulting, Ltd. v. Doman Indus., 472 F.3d 23, 28 (2d Cir.2006).
Plaintiff argues that the District Court misapplied Twombly, and improperly required pleading with particularity. Plaintiff further asserts that the allegations in the amended complaint support a “plausible” claim sufficient to satisfy the Twombly standard. Under Twombly (and confirmed by Iqbal), Rule 8 requires that a plaintiff allege in its complaint “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. To meet this standard, plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible.” Id. This requires alleging “enough fact to raise a reasonable expectation that discovery will reveal evidence” to prove the claim. Id. at 556, 127 S.Ct. 1955.
Even applying the standard set forth in Twombly — -a more lenient standard than that which the District Court imposed — we find that the allegations in plaintiff’s amended complaint fail to support a “plausible” claim. Plaintiff’s amended complaint states that (1) “[b]y January 2006, *620Ikanos learned that the VDSL Version Four chips were failing,” Am. Compl. ¶ 49; and (2) “Ikanos determined that the VDSL Version Four chips had a failure rate of 25% [to] 80%, which was extremely high,” Am. Compl. ¶ 51. Learning that some chips were defective would be expected, so the critical question is when Ikanos determined that the failure rate was abnormally high. The amended complaint need not, despite the District Court’s suggestion, allege when Ikanos knew the failure rate was specifically twenty-five to thirty percent. Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 538 F.Supp.2d 662, 673 (S.D.N.Y.2008). Instead, plaintiff needs only allege that Ikanos knew of abnormally high failure rates before the company published the registration statement accompanying its March 2006 secondary offering. As the District Court noted, “[n]o plausibly pleaded fact suggests that Ikanos knew or should have known the scope or magnitude of the defect problem at the time of the Secondary Offering.” Id.
Again, it is worth emphasizing that the District Court order may have required plaintiff to allege facts with more particularity than the Twombly standard requires. The District Court stated that “[p]laintiff must tell the Court what was going on when — and how much the defect experienced actually differed from the norm.” Id. Additionally, the District Court noted, “here there is no pleading as to what a ‘normal’ defect rate is.... ” Id. The plausibility standard would not require that plaintiff assert, for example, exactly when the company knew the difference in defect rates between the VDSL chips and other chips was statistically significant. The plausibility standard, however, does require a statement alleging that they knew of the above-average defect rate before publishing the registration statement.
Although we do not agree that as much specificity is required in pleading as required here by the District Court, our de novo review leads us to the same conclusion as the District Court. Without an allegation in the amended complaint that Ikanos knew of the abnormally high defect rate in the VDSL chips before publishing their registration statement, the amended complaint failed to meet the plausibility requirements of Twombly because it did not allege facts sufficient to complete the chain of causation needed to prove that defendants negligently made false statements Therefore, it was proper for the District Court to dismiss the amended complaint.
Leave to Amend
We review denial of leave to amend under an “abuse of discretion” standard. See, e.g., McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007) (leave to amend); Devlin v. Transps. Commc’ns Int’l Union, 175 F.3d 121, 131-32 (2d Cir.1999) (motion for reconsideration); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citation, alterations, and quotation marks omitted)).
First, it is well established that although leave to amend should be “freely given,” Fed.R.Civ.P. 15(a), there is no rule that every request to amend must be granted. See McCarthy, 482 F.3d at 200. Second, though we have observed that complaints assessed under Rule 9(b) of the Federal Rules of Civil Procedure are routinely allowed “at least one opportunity to plead fraud with greater specificity,” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 108 (2d Cir.2007), we assess this *621complaint under Rule 8, not Rule 9(b), because this plaintiff alleges negligent preparation of the registration statement and prospectus, rather than fraudulent preparation. See Rombach v. Chang, 355 F.3d 164, 171, 178 (2d Cir.2004) (applying Rule 9(b) requirements to claims under sections 11 and 12(a)(2) of the Securities Act of 1933 when they allege fraud, but applying Rule 8 requirements when they allege negligence); Am. Compl. ¶ 46 (“The Secondary Offering Registration Statement and Secondary Offering Prospectus were negligently prepared.... ”). There is no general rule that just because the complaint is brought under the federal securities laws, a plaintiff will automatically receive leave to amend.
Because there is no requirement to grant leave to amend under the circumstances presented here, it was within the District Court’s discretion to deny leave to amend.
Motion for Reconsideration
We generally review motions for reconsideration under an “abuse of discretion” standard. Devlin, 175 F.3d at 131-32. When the denial of leave to amend is based on a legal interpretation, such as for futility, a reviewing court conducts a de novo review. See, e.g., Littlejohn v. Artuz, 271 F.3d 360, 362 (2d Cir.2001) (“[I]f the denial of leave to amend is based upon a legal interpretation ... we review the decision de novo.”); see also Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir.2007) (reviewing de novo a district court’s denial of leave to amend on grounds of futility). Because the District Court did not consider the issue of futility until it decided the motion for reconsideration, we turn to that question in reviewing the District Court’s order denying the motion for reconsideration, which we review de novo.
Despite alleging new facts, the proposed second amended complaint does not cure the deficiencies of the dismissed (first) amended complaint. Plaintiffs proposed second amended complaint does allege additional facts, but none of these facts answers the critical question about when the company knew that the defect rate was unusually high. Plaintiff primarily cites evidence from the “former Director of Quality and Reliability” (the “former Director”) at Ikanos. Proposed Second Am. Compl. ¶ 33. Plaintiff states that the former Director “learned that there were quality issues with VDSL Version Four chip in January 2006.” Id. Panther Partners does not allege, however, that the quality issues deviated from normal quality issues the company would expect in any production run. Plaintiff further asserts that “in the weeks leading up to the Secondary offering, the defect issues ... became more pronounced.” Proposed Second Am. Compl. ¶ 34. One would expect, however, that normal defects would also become more pronounced as the new product entered the market. Furthermore, plaintiff does not allege that, even “in the weeks leading up to the Secondary Offering,” the company knew that the defect rates were unusually high and therefore could materially affect earnings. Panther Partners in fact concedes that it was not until June 2006 — three months after the secondary offering — that Ikanos decided to replace all chips on a board with one defective chip. Proposed Second Am. Compl. ¶ 37. This remedy proved costly for Ikanos. Proposed Second Am. Compl. ¶39. Although these assertions “nudge[d] [plaintiffs] claims” closer “to the line from conceivable to plausible,” they were not enough to push the proposed second amended complaint across that line. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (requiring that plaintiffs “nudge[] their claims across the line from conceivable to *622plausible”). The proposed second amended complaint thus failed to allege plausibly that the company knew of abnormally high and potentially problematic defect rates before Ikanos published the registration statement.
Despite the deficiencies in the proposed second amended complaint, granting leave to amend anew may not be futile in this case. Granting leave to amend is futile if it appears that plaintiff cannot address the deficiencies identified by the court and allege facts sufficient to support the claim. Joblove v. Barr Labs., Inc., 466 F.3d 187, 220 (2d Cir.2006). Although courts commonly look to proposed amendments to determine futility, courts need not determine futility based only on an assessment of the proposed amendments— that is, the complaint presented to the court for its consideration. Cf. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 235 (2d Cir.2007) (directing the district court to consider “whether the proposed amendment or different amendments to the complaint should be allowed”) (emphasis added). Instead, courts may consider all possible amendments when determining futility. Because it seems to us possible that plaintiff could allege additional facts that Ikanos knew the defect rate was above average before filing the registration statement, and that this allegation, if made, would be sufficient to meet the high standards that Iqbal and Twombly require for pleadings, further amendment may not be futile.
Finally, we recognize that Iqbal and Twombly raised the pleading requirements substantially while this case was pending. Although plaintiff has had an opportunity to further amend its complaint after Twombly was decided, we proceed cautiously in light of the rapidly changing contours of the pleadings standard in order to ensure justice.
For these reasons, we vacate the order of the District Court denying the motion to reconsider its decision to deny leave to amend and remand the cause to the District Court.
CONCLUSION
After considering all of plaintiffs arguments, we AFFIRM the District Court’s judgment insofar as it dismissed the amended complaint and VACATE the District Court’s judgment insofar as it denied the motion to reconsider its denial of leave to amend. Accordingly, we REMAND the cause to the District Court for further proceedings consistent with this order, which may, upon reconsideration, include affording an opportunity to plaintiff to seek leave to amend the complaint further. We emphasize that in doing so we intimate no view on the substance of amendments that would meet the relevant pleading standards, much less a view on how the District Court should evaluate any further motion to amend.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472524/
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SUMMARY ORDER
Defendants-appellants-eross-appellees Certain Underwriters at Lloyd’s London and London Market Insurance Companies (collectively “defendants” or “LMI”) appeal from the judgment of September 8, 2008 and from the order of September 25, 2008 denying LMI’s motion for judgment as a matter of law or for a new trial. Plaintiff-appellee-cross-appellant Olin Corporation (“plaintiff’ or “Olin”) cross-appeals from the judgment of September 8, 2008 inasmuch as it declines to hold LMI liable for defense costs prior to Olin’s settlement with its primary insurer. On appeal, defendants argue as follows: (1) the District Court erred when it denied LMI’s motion for reconsideration of their previous motion for judgment as a matter of law on remand from this Court; (2) the District Court erred in its jury instructions when it improperly defined “property damage” and when it instructed the jury that the task of determining the amount of property damage in each period is “one of estimation”; (3) the District Court erred when it found that multi-year policies issued by LMI have a single deductible or underlying limit; and (4) the District Court erred when it found that LMI waived their “late notice” defense. Plaintiff, on cross-appeal, argues that the District Court erred in failing to require LMI to reimburse Olin for defense costs incurred prior to Olin’s settlement with its primary insurer. We assume the parties’ familiarity with the facts and procedural history of this case.
First, defendants argue that the District Court erred when it denied LMI’s motion for reconsideration of their previous Rule 50 motion for judgment as a matter of law, Fed.R.Civ.P. Rule 50(b), on remand from this Court and instead grant*626ed a new trial.1 See generally Olin Corp. v. Certain Underwriters at Lloyd’s, 468 F.3d 120 (2d Cir.2006) (“Olin I”). Our decision in Olin I stated that “a new trial is almost certainly required” but also that the District Court should review the record to determine if “Olin has introduced any evidence by which a rational juror could conclude [that] property damage ... ended before remediation.” Id. at 132. If Olin had presented evidence sufficient to meet this burden, then the District Court should hold a new trial. In the first trial, Olin had introduced evidence that active contamination at the Niagara Falls site was complete by 1957-forty years before Olin began remediation in 1997. Although it is arguable that some passive contamination occurred for years after the active contamination was complete, we conclude that a rational juror could reasonably find that passive contamination ended at some point before 1997. Olin presented similar evidence for the other relevant sites. For this reason, the District Court did not err in denying LMI’s motion and instead ordering a new trial.
Next, defendants contend that the District Court improperly instructed the jury on the definition of “property damage.” We review a district court’s jury instructions de novo, determining “whether considered as a whole, the instructions adequately communicated the essential ideas to the jury.” United States v. Schultz, 333 F.3d 393, 414 (2d Cir.2003) (alteration and quotation marks omitted). In our opinion in Olin I, we clearly outlined the proper definition of “property damage.” Specifically, we held that “property damage occurs as long as contamination continues to increase or spread, whether or not the contamination is based on active pollution or the passive migration of contamination into the soil and groundwater.” Olin I, 468 F.3d at 131. In its instructions to the jury during the second trial, the District Court stated in relevant part:
To illustrate [the definition of passive contamination], if Olin introduces pollutants into an area during a given year and if by the force of nature the area of contamination grows or if the contamination moves into a new area and if this occurs in a subsequent year, then there is new property damage during that subsequent year to the extent of the growth or movement into the new area. If such a process keeps on happening year after year, there is new property damage in each of those years. If the contamination moves into a new area in a given year, there is new property damage, increasing what Olin must remedy and so increasing Olin’s liability.
Let us not forget that the question is always whether there is new property damage which increases Olin’s liability. This relates to the ultimate question of *627whether in any given year a percentage of Olin’s ultimate total liability for the particular site can be assigned to a given year and what is that percentage.
Tr.1965-66.
When considering the jury instructions as a whole, we conclude that, though not a model of clarity, the jury instructions “adequately communicated the essential ideas to the jury,” Schultz, 833 F.3d at 414, and did not “misled the jury regarding the applicable legal rule.” United States v. Ford, 435 F.3d 204, 209-10 (2d Cir.2006). The instructions clearly stated that passive contamination was one cause of property damage and that LMI were responsible only for the damage that Olin ultimately remediated. For these reasons, we conclude that the District Court did not err when instructing the jury in this manner.
Similarly, LMI argue that the District Court improperly instructed the jury that the task of determining the amount of property damage in each period is “one of estimation.” In Olin I, we held that the “costs of remediation should be allocated over the period in which property damage occurred, as nearly as possible according to the amount of property damage that occurred in each policy period.” Olin I, 468 F.3d at 123. When instructing the jury, the District Court stated that the task of allocation of property damage across years in the policy period was “one of estimation, although surely estimation, not guesswork.” Tr.1970. The District Court continued: “[A]ny finding you make obviously must be based on evidence, based on reason, and of course not mere guesswork.” Tr.1971. Reasonable estimation, it seems to us, allocates property damage “as nearly as possible” to the aetual amount of damage incurred in a given year — especially when much of the damage occurred a half century ago. Therefore, we conclude that the District Court did not err in giving this instruction.
Third, LMI argue that the District Court erred in holding that LMI’s multiyear policies required only one deductible. We review the District Court’s ruling of law de novo. See, e.g., Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 112 (2d Cir.2008). In its September 8, 2008 judgment, the District Court held that “[w]here there is one policy limit for a Multi-Year Policy, ... there is only one deductible or underlying limit for that period of time.” The policy language that the parties provide states in relevant part: “Underwriters hereon shall only be liable for the ultimate net loss the excess of ... the amounts recoverable under underlying insurances ... (all hereinafter called the ‘underlying limits’) and then only up to a further $300,000.00 in all in respect of each occurrence.” J.A. 845 (emphases added).2 “When the provisions [of an insurance policy] are unambiguous and understandable, courts are to enforce them as written.” Parks Real Estate Purchasing Group v. St. Paul Fire and Marine Ins. Co., 472 F.3d 33, 42 (2d Cir.2006). Deciding “[wjhether a contract is ambiguous is a threshold question of law to be determined by the court.” Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384, 390 (2d Cir.2005). We find the plain language of the policy ambiguous. Because we must resolve any ambiguity “in favor of the insured,” Goldberger v. Paul Revere Life Ins. Co., 165 F.3d 180, 182 (2d Cir.1999); see also Olin I, 468 F.3d at 131 (applying this principle to sophisticated *628parties), we must find in favor of Olin that there was only one underlying limit. For these reasons, we conclude that the District Court did not err in finding that where there was only one policy limit, there was only one underlying limit.
Fourth, LMI contends that the District Court erred when it held that LMI waived its “late notice” defense. Again, we review the District Court’s ruling of law de novo. See, e.g., Somoza, 538 F.3d at 112. We have consistently held that under New York law, which the parties agree is applicable here, “an insurer is deemed, as a matter of law, to have intended to waive a defense to coverage where other defenses are asserted, and where the insurer possesses sufficient knowledge (actual or constructive) of the circumstances regarding the unasserted defense.” New York v. Amro Realty Corp., 936 F.2d 1420, 1431 (2d Cir.1991) (applying New York law). In this case, LMI expressly reserved certain rights regarding coverage upon receiving notice of the claim, J.A. 901, and had sufficient knowledge of the circumstances regarding the unasserted defense. We therefore conclude that the District Court did not err in holding that LMI waived its late notice defense.
Finally, on cross-appeal, Olin argues that the District Court erred in failing to require LMI to reimburse Olin for defense costs incurred prior to Olin’s settlement with its primary insurer. The policy states, “The underwriter shall not be liable for expenses as aforesaid when such expenses are included in other valid and collectible insurance.” Reading the plain language of the policy and resolving ambiguities in favor of the insured, we agree with the District Court’s conclusion that the legal expenses incurred prior to the settlement were covered by other valid and collectible insurance and therefore that LMI are not liable for those legal expenses.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
. We generally review motions for reconsideration under an "abuse of discretion” standard. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 131 (2d Cir.1999); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) ("A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citation, alterations, and quotation marks omitted)). In this case, however, the District Court considered the motion after we reviewed and refined the definition of "property damage” in Olin Corp. v. Certain Underwriters at Lloyd’s, 468 F.3d 120 (2d Cir.2006) ("Olin I"). Because the District Court was applying this new definition, we conclude that its review of the motion for reconsideration was more akin to a review of a motion for judgment as a matter of law. We review a district court's ruling on Rule 50 motions for judgment as a matter of law de novo, see, e.g., Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir.2004), and therefore review this ruling de novo.
. We note, however, that the plaintiff's brief twice misquotes the policy by failing to make "insurance” and "limit” plural. Although we have no reason to believe that this is anything other than a drafting error, rather than a deliberate attempt to mislead the Court, we must remind counsel to use care in drafting.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472528/
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SUMMARY ORDER
Appellants Clarke et al. appeal from judgments by the United States District Court for the Southern District of New York (Lynch, J.), after a jury verdict, dismissing the complaint and denying judgment as a matter of law. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This case falls squarely under the previously decided Singh v. City of New York, 524 F.3d 361 (2d Cir.2008). In Singh, a group of inspectors with the Fire Alarm Inspection Unit of the New York Fire Department brought a claim under the Fair Labor Standards Act (“FLSA”), as amended by the Portal-to-Portal Act, demanding compensation for their commuting time because they were required by their employer to transport and protect inspection documents. Id. The collective weight of their materials was between 15 and 20 pounds. Id. at 365.
We analyzed the claim in two parts, looking first to whether plaintiffs were entitled to compensation for the entire commute and, if not, whether they were entitled to compensation for the additional commuting time that resulted from their transport of these materials. Id. at 366-67. For the first part of the analysis, we applied a “predominant benefit test,” asking whether the employer’s restrictions hindered the employees’ ability to use *634their commuting time as they otherwise would have. Id. at 369. We determined that the inspectors’ commute was not materially altered by their document transport responsibilities, and thus they were not entitled to compensation for the entire commute. Id. at 370. We then looked to the second part of the test to determine if the additional commuting time that resulted from the transport of the documents was compensable. Id. While noting that the additional time was time spent “necessarily and primarily for the benefit of the City” and thus was compensable, we looked to a three-part test to determine if such compensable time qualified as de minimis. Id. The three factors were: “(1) the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis.” Id. at 371. Under this test, we determined that the additional commuting time was de minimis as a matter of law. Id. Thus, none of the plaintiffs’ commuting time was compensable under the FLSA. Id. at 372.
The facts of the case before us are materially indistinguishable from Singh. Plaintiffs in this case, like Singh, are responsible for the transport of a 20-pound bag of equipment.1 This 20-pound bag, however, does not burden the plaintiffs to such a degree as to make the City the predominant beneficiary of their commute. Their responsibility is limited to transporting the bag; there are no other active work-related duties required during the commute. Transporting a bag in a car trunk, or at plaintiffs’ feet on a train or bus, allows them to use their commuting time as they wish. To the extent that the bag adds time to their commute, we find, just as in Singh, that such time is de minimis and non-compensable.
We reviewed the jury instructions and found no error.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Though there appeared to be a dispute at trial as to the weight of the equipment, Appellants’ brief uses an estimate of "at least 20 pounds.”
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472530/
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SUMMARY ORDER
Defendant Stanford Frederick Brown was convicted, after a jury trial, of one count of making a false statement for the purpose of influencing an insured state-chartered credit union, see 18 U.S.C. § 1014, and one count of aggravated identity theft, see id. § 1028A. Sentenced principally to 32 months’ incarceration, Brown has completed his term of imprisonment and been removed to his native Jamaica. On appeal, Brown challenges the district court’s supplemental jury instructions regarding venue and the suffi*636ciency of the evidence on the issue of venue. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Reference to Loan Application in Supplemental Instruction
Brown contends that the district court erred in referencing the loan application containing the alleged false statement in its supplemental venue instruction. A trial court “has broad discretion to decide which facts, if any, it will mention in its comments to the jury,” limited only “by the requirement that the charge be fair to both sides.” United States v. GAF Corp., 928 F.2d 1253, 1263 (2d Cir.1991). In this case, clarification specifically referred to the loan application and the court’s supplemental instruction commented only on the law that would apply “if’ the government made the necessary venue showing regarding receipt, approval or communication of the loan application. Trial Tr. 326. We identify no abuse of discretion on this record.
2. Supplemental Venue Instruction
Brown next argues that the district court erred as a matter of law in charging the jury that venue would properly lie in the Southern District of New York on the two counts of conviction “if a loan application was made or submitted in another district ... but received or approved or caused to be communicated in this district.” Id. Because this particular challenge was not presented to the district court, we review only for plain error. See United States v. Joseph, 542 F.3d 13, 25 (2d Cir.2008) (noting that plain error review applies, inter alia, where a defendant “fail[s] to state his objection with sufficient clarity” or makes an “objection [that] focuses on a different problem than that targeted on appeal”). We encounter no such error here.
“At a minimum,” an error is not “plain” unless it is “clear under current law.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Brown, however, has cited no authority addressing the statute here at issue, 18 U.S.C. § 1014, and reaching a different conclusion as to venue from that expressed by the district court. Nor are we aware of any such controlling law. In fact, several courts of appeals, relying in part on our decision in United States v. Candella, 487 F.2d 1223 (2d Cir.1973) (analyzing 18 U.S.C. § 1001), have reached a result consistent with the district court’s charge. See United States v. Angotti, 105 F.3d 539, 543 (9th Cir.1997) (citing cases from Seventh, Tenth, and Eleventh Circuits). That the First Circuit in United States v. Salinas, 373 F.3d 161, 168 (1st Cir.2004), distinguished certain of these cases in analyzing the venue requirements of a different statute, 18 U.S.C. § 1542, is of no moment, as any error in the district court’s unprotested failure to apply a similar analysis here is far from “clear under current law.” United States v. Olano, 507 U.S. at 734, 113 S.Ct. 1770. We therefore reject Brown’s challenge on this point.
3.Sufficiency of the Evidence on Venue
Finally, Brown contends that the trial evidence was insufficient to permit a reasonable jury to find that venue was established in the Southern District of New York. Again, Brown failed to raise this argument below. Because venue is not an element of the charged offense, see United States v. Rommy, 506 F.3d 108, 119 (2d Cir.2007), we have consistently “held that [a] defendant’s objections to venue are waived unless specifically articulated in defense counsel’s motion for acquittal,” United States v. Bala, 236 F.3d *63787, 95 (2d Cir.2000) (internal quotation marks and alteration omitted), even where defense counsel engages in cross-examination on venue and requests a venue instruction, see id. (citing United States v. Potamitis, 739 F.2d 784, 791 (2d Cir.1984)). Defense counsel’s statement at the close of the government’s case — “I have a motion,” Trial Tr. at 243 — was thus insufficient to preserve the challenge offered here. See United States v. Potamitis, 739 F.2d at 791 (“A general motion for a judgment of acquittal, or a general motion for a directed verdict of acquittal at the close of the Government’s case, is not sufficient to raise and preserve for appeal the question of venue.”). We therefore deem this challenge waived. In any event, in view of the fact that the defendant’s false loan application was on its face addressed to the lending institution at an address in the Southern District of New York, it appears that there is no merit to the defendant’s claim that venue was not established.
4. Conclusion
For the foregoing reasons, the judgment of conviction is AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472536/
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SUMMARY ORDER
Petitioner Quang Li, a native and citizen of the People’s Republic of China, seeks review of: (1) the October 25, 2007 order of the BIA denying his third motion to reopen; and (2) the July 24, 2008 order of the BIA denying his fourth motion to reopen. In re Quang Li, No. A072 365 958 (B.I.A. Oct. 25, 2007); In re Quang Li, No. A072 365 958 (B.I.A. July 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Li’s April 2007 and March 2008 motions to reopen were untimely where the BIA entered a final administrative order dismissing his appeal in May 1996. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). There are no time limitations for filing a *645motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
I. Dkt. No. 07-5202-ag (L)
The BIA did not abuse its discretion in denying Li’s third motion to reopen because it reasonably found that he failed to proffer material evidence in support of that motion. Li was previously found not credible in his underlying proceeding, and his changed country conditions argument was supported only by an unauthenticated subpoena. In such circumstances, the BIA does not err in refusing to credit the movant’s evidence. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007) (finding that the agency may properly conclude that a prior adverse credibility determination undermines the authenticity of documentary evidence accompanying an alien’s motion to reopen); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (holding that a “finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner”); 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
II. Dkt. No. 08-3912-ag (Con)
The Government has moved for summary affirmance of the BIA’s denial of Li’s fourth motion to reopen. Construing that motion as seeking summary denial of the petition for review, we grant the motion. The BIA did not err in finding that Li failed to demonstrate changed country conditions excusing the time limitation for filing his fourth motion to reopen where he failed to submit any evidence in support of that motion. See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904 (finding that the BIA does not abuse its discretion in denying a motion to reopen when the movant has not introduced previously unavailable, material evidence). We note that the translation errors which Li argues constitute the “functional equivalent” of changed country conditions, would not materially alter the meaning of the evidence Li described-evidence the BIA has considered time and again. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).
To the extent Li alleges a due process violation, he has no due process right in seeking a discretionary grant of a motion to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Li has remained in this country illegally for almost seventeen years. In that time he has filed, and had adjudicated, an asylum application and four motions to reopen. He has received ample process. See Yuen Jin, 538 F.3d at 157; see also Wei Guang Wang, 437 F.3d at 273-74. Accordingly, Li’s petition for review is meritless and summary disposition in this case is appropriate. See Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir.1995) (per curiam).
For the foregoing reasons, the petition for review in Dkt. No. 07-5202-ag (L) is DENIED. In Dkt. No. 08-3912-ag (Con), Respondent’s motion for summary affirmance (construed by the Court as a motion for summary denial) is GRANTED and *646the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Defendants-appellants Michael and Alex Mitselmakher (collectively “the Mitselmakhers”) appeal from a memorandum decision and order of the United States District Court for the Eastern District of New York (Cogan, J.) dated November 20, 2008, 2008 WL 5068609, denying their motion for attorneys’ fees and expenses brought pursuant to the Hyde Amendment. We assume the parties’ familiarity with the un*650derlying facts and procedural history of this case.
The Hyde Amendment was “enacted as part of P.L. 105-119, the $31.8 billion Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1998, and is found as a statutory note to 18 U.S.C. § 3006A.” United States v. Schneider, 395 F.3d 78, 85 (2d Cir.2005) (internal quotation marks omitted). It provides that a court may award a “reasonable attorney’s fee and other litigation expenses” to a defendant who prevails in a criminal case “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.” Id. at 85-86 (quoting Pub.L. No. 105-119, § 617, 111 Stat. 2440, 2519).
This Court has never “parse[d] the precise meaning” of the terms “vexatious,” “frivolous,” or “in bad faith,” see id. at 86, nor need it do so here, because this case “clearly falls short of the type of abusive prosecutorial conduct that would trigger Hyde Amendment liability.” Id.
One of the Mitselmakhers’ principal arguments is that the government pursued a theory of entrapment that “was foreclosed by precedent and obviously wrong.” We agree with the district court, however, that the evidence could have supported the government’s theory that the Mitselmakhers were predisposed to commit the charged offense. See, e.g., United States v. Brand, 467 F.3d 179, 190-91 (2d Cir.2006). We note further that the Mitselmakhers’ argument that the government’s case was predicated on the “twelfth recorded conversation” is belied by the totality of the evidence, which demonstrates that the government relied on many of the recorded conversations in presenting its case to the jury.
We acknowledge the district court’s criticism of the government’s conduct in this case, criticism that the government appears to concede was warranted. But we ultimately agree with the district court’s conclusion that had the jury credited the government’s evidence, the Mitselmakhers could have been convicted of the crimes with which they were charged. Given those circumstances, we do not believe that the district court erred when it denied the Mitselmakhers’ motion for attorneys’ fees and expenses.
We have considered all of the Mitselmakhers’ arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs, police officers in the Town of Harrison, New York (the “Town”), allege that the Town, its police chief, and a police captain (collectively, “defendants”) violated plaintiffs’ First, Fourth, and Fourteenth Amendment rights, see 42 U.S.C. § 1983, and Title III of the Omnibus Crime Control and Safe Streets Act (Title III), 18 U.S.C. § 2520, by installing a video surveillance camera in the police department locker room. They now appeal an award of summary judgment in favor of defendants, a ruling we review de novo. Oll*652man v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). We will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Fourth Amendment
Although defendants adduced considerable evidence that the challenged camera provided no ongoing video surveillance of the locker room, plaintiffs submit that certain contradictions in the evidence would permit a reasonable jury to conclude that they were searched, thereby precluding an award of summary judgment. We disagree. Relying on two still photographs taken by the camera, neither of which depicts any person, and testimony from Andrew Natarelli, who installed the camera, stating that he tested the camera by observing Sergeant Dominick Pascale, who is not a party to this case, plaintiffs argue that the camera was operational and that its field of view was broader than defendant Anthony Marraccini’s locker. Viewed in the light most favorable to the plaintiffs, this evidence establishes only the “potential for an invasion of privacy.” United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). It does not show that plaintiffs’ expectation of privacy in the workplace locker room was ever infringed.1 See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Sheppard v. Beerman, 18 F.3d 147, 152 (2d Cir.1994).
Although plaintiffs acknowledge that defendants never used the camera to record them, they argue that defendants David Hall and Marraccini admitted to using the camera to view them live. See Marraccini Aff. ¶ 27; Hall Aff. ¶4; Nardi Aff. II2. The statements cited by plaintiffs in fact express only defendants’ tactless responses to the discovery of the camera; in context, they cannot reasonably be construed as admissions that defendants ever actually viewed plaintiffs on camera.
Defendants have, in fact, persistently denied ever observing plaintiffs on camera. Plaintiffs now argue that evidence suggesting the camera worked on two occasions sufficiently contradicts defendants’ statements that the camera “never worked” or was “never hooked up” to support an inference of constitutionally proscribed viewing. Appellants’ Br. at 24. In the district court, however, plaintiffs did not contest that (a) the camera’s motion sensor never functioned as intended, or that (b) Marraccini never accessed the DigiVue software on his computer. On this record, we identify no inconsistency that would preclude summary judgment. Defendants’ later statements that the camera did not operate as intended merely clarified their earlier assertions about the camera’s non-functionality. Moreover, plaintiffs declined to inspect Marraccini’s computer for possible evidence of either DigiVue access or locker room viewing. While such an inspection may have been inconclusive, in its absence, plaintiffs’ contention that the computer was used to violate their Fourth Amendment rights reduces to speculation. Because plaintiffs failed to adduce sufficient admissible evidence to raise a genuine issue of material fact about whether they were ever observed on camera, the district *653court properly entered summary judgment in favor of defendants on the Fourth Amendment claim.2
2. Title III
Plaintiffs submit that evidentiary contradictions as to the audio recording capacity of the locker room camera precluded summary judgment on their Title III claim. See 18 U.S.C. § 2520. Even assuming that a jury were to resolve this factual dispute in favor of plaintiffs, finding that the camera was capable of recording sound, plaintiffs were still required to adduce some evidence that their communications were, in fact, intercepted to defeat summary judgment. See id. § 2520(a); see also DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir.2005) (noting propriety of summary judgment when Title III plaintiff presents no evidence that device was actually used to intercept communications); Gross v. Taylor, 1997 WL 535872, at *4-*5 (E.D.Pa. Aug.5, 1997) (holding that plaintiffs lacked standing under Title III because they could not show that “an interception actually took place”). Citing Scutieri v. Paige, 808 F.2d 785 (11th Cir.1987), plaintiffs contend that a reasonable jury could infer interception from the totality of the circumstances. Scutieri, however, does not support plaintiffs’ argument because the defendant in that case conceded that an interception actually occurred. Id. at 790. Because plaintiffs have adduced no evidence that their communications were intercepted, we conclude that the district court properly entered summary judgment on the Title III claim.
3. First Amendment
Finally, plaintiffs submit that they were entitled to pursue a First Amendment retaliation claim because their efforts to persuade the PBA to report the challenged surveillance to the district attorney demonstrate that they “spoke as ... citizen[s] on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “Whether an employee’s speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.1999) (citing Connick v. Myers, 461 U.S. 138, 147-48 & n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In making this determination, the speaker’s motive is relevant, see Lewis v. Cowen, 165 F.3d at 163-64, but “not dispositive,” see Sousa v. Roque, 578 F.3d 164, 173-74 (2d Cir.2009). “An employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking ‘upon matters only of personal interest.’ ” Id. (quoting Connick v. Myers, 461 U.S. at 147, 103 S.Ct. 1684).
Plaintiffs’ efforts to persuade the PBA to file a criminal complaint do not manifest the sort of public concern evident in allegations of public corruption. See Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003). The harm alleged in this case affected only the Town’s police officers in the conditions of their employment. These conditions, unlike corruption, had no bearing on how the police department operated in its public enforcement of the law. Even though plaintiffs claim that their advocacy was on behalf of the entire PBA membership, their speech did not implicate First Amendment rights. As this court explained in Ruotolo v. City of New York, “[a] public employee may not transform a *654personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run. A generalized public interest in the fair or proper treatment of public employees is not enough.” 514 F.3d 184, 190 (2d Cir.2008) (internal quotation marks and citation omitted). We therefore conclude that the district court correctly entered summary judgment on plaintiffs’ First Amendment retaliation claim.
We have considered plaintiffs’ other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.
. We assume arguendo, as the district court did, that plaintiffs had a legitimate expectation of privacy when changing clothes in the subject locker room. See DeVittorio v. Hall, 589 F.Supp.2d 247, 257 (S.D.N.Y.2008).
. Our ruling, based on plaintiffs' failure to adduce prima facie factual support for their claim, does not imply that their factual allegations, if proved, would constitute a violation of the Fourth Amendment. On that question, we express no view.
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*655SUMMARY ORDER
Ariel Friedlander appeals from a judgment of the United States District Court for the Eastern District of New York (Spatt, J.). The district court dismissed Friedlander’s claims against Port Jewish Center (“the Temple”) arising from the Temple’s termination of her as its rabbi. Citing the “ministerial exception,” a constitutional doctrine that forbids courts from disturbing the autonomy of religious institutions over ecclesiastical affairs and from entangling themselves in religious questions, see Rweyemamu v. Cote, 520 F.3d 198, 204-09 (2d Cir.2008), the district court determined that it lacked subject matter jurisdiction. Friedlander now contends that dismissal pursuant to the ministerial exception was inappropriate because the district court’s analysis of her claims would not have required it to examine religious issues. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
This Court reviews de novo a decision to grant a motion to dismiss for lack of subject matter jurisdiction. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Id.
In Rweyemamu, we held that a plaintiff-minister’s race discrimination suit against a diocese was barred by the ministerial exception because reviewing the minister’s claim would have required the district court to assess the plausibility of the diocese’s contention that it fired the priest due to his inadequate performance of his pastoral duties. Rweyemamu, 520 F.3d at 209. We held that such a review “easily falls within” the boundaries of the ministerial exception. Id.; see also Minker v. Baltimore Annual Conference of the United Methodist Church, 894 F.2d 1354, 1357 (D.C.Cir.1990) (“[Evaluation of the ‘gifts and graces’ of a minister must be left to ecclesiastical institutions.”).
Similarly, review of Friedlander’s claims in this case would require scrutiny of whether she should have, inter alia, read more extensively from the Torah at certain services, prepared students for their Bar or Bat Mitzvah more adequately, performed certain pastoral services that were not performed, or followed the Temple’s funeral service policies. A reviewing court would also be required to assess whether any failures rose to the level of “gross misconduct or willful neglect of duty” under the relevant employment contract. We agree with the district court that such review would involve impermissible judicial inquiry into religious matters.
For the foregoing reasons, the decision is AFFIRMED.
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*657SUMMARY ORDER
Ihab Tartir appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Lynch, /.). Tartir was convicted, after a jury trial, of two counts of conspiracy to commit marriage fraud, 8 U.S.C. § 1325(c), 18 U.S.C. § 371, and one count of aiding and abetting marriage fraud for the purpose of evading immigration laws, 8 U.S.C. § 1325(c), 18 U.S.C. § 2(a). The charges stemmed from Tartir’s involvement in organizing two sham marriages in 2006 and 2007 and from his legal representation of the non-citizen marriage participants in the application process for permanent residence cards. Tartir was sentenced principally to 24 months’ imprisonment. On appeal, Tartir contends that his conviction should be reversed because the district court improperly admitted under Rule 404(b) testimony from a cooperating witness about Tartir’s role with respect to similar sham marriages that took place from 2002 to 2004. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented' on appeal.
A district court’s decision to admit prior act evidence under Rule 404(b) is reviewed for abuse of discretion. United States v. Mejia, 545 F.3d 179, 206 (2d Cir.2008). The admission of such evidence is subject to harmless error analysis. United States v. Madori, 419 F.3d 159, 168 (2d Cir.2005).
As an initial matter, this issue has been waived due to the fact that trial counsel consented to the admission of the evidence challenged on appeal. During the final pretrial conference, defense counsel indicated that Tartir would not oppose admission of “404(b)-type evidence” during the government’s case in chief because Tartir planned to testify at trial and “one way or another, the matters are going to get put before the jury.” Counsel explained that his “basic philosophy” at trial is to “be as open as we possibly can” because “jurors do not favor lawyers employing technicalities at any stage.” Defense counsel did object at various points to the testimony about Tartir’s prior conduct, but the objections related to form and scope, not the admissibility of evidence of prior acts. Tartir has therefore waived his evidentiary claim. See United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995) (noting that if a party “consciously refrains from objecting [to an evidentiary decision] as a tactical matter, then that action constitutes a true “waiver,’ which will negate even plain error review”); see also United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir.1991) (noting that where a defendant “is attempting to evade the consequences of an unsuccessful tactical decision,” appellate review is waived).
Putting the question of waiver to the side, the district court did not abuse its discretion in admitting testimony from the cooperating witness, Mohamed Mabrouk, concerning his interactions with Tartir between 2002 and 2004. In conspiracy cases, evidence of prior acts may be admitted as direct evidence of the charges where it supports the prosecution’s theory that a conspiracy took place. Mejia, 545 F.3d at 206; United States v. Diaz, 176 F.3d 52, 79 (2d Cir.1999) (noting that where a conspiracy is charged, “uncharged acts may be admissible as direct evidence of the conspiracy itself’ (citation and internal quotation marks omitted)). Mabrouk’s testimony about Tartir’s prior acts was admissible as direct evidence because it provided background related to his relationship with Tartir and was some evidence that a conspiracy existed.
Mabrouk’s testimony was also admissible under Rule 404(b). Tartir’s principal defense at trial was that he did not *658know that the marriages in question were fraudulent. Therefore, Mabrouk’s testimony about Tartir’s previous participation in similar marriage fraud schemes was relevant because it tended to show that Tartir had the requisite intent to support his conviction. Moreover, the evidence was corroborative of the government’s other evidence of knowing involvement in the scheme to evade immigration laws.
We have considered Tartir’s remaining contentions on appeal and find them to be without merit.
For the foregoing reasons, the judgment is AFFIRMED.
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SUMMARY ORDER
Defendant Avile was convicted, following a guilty plea, of one count of conspiring to distribute heroin, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; one count of distributing heroin, see id. § 841(a)(1), (b)(1)(A); and one count of carrying, brandishing, and possessing a firearm during and in relation to the heroin trafficking offenses, see 18 U.S.C. § 924(c)(l)(A)(ii),2 and was sentenced principally to concurrent terms of 131 months’ imprisonment on the heroin-distribution counts and a consecutive term of 84 months’ imprisonment on the § 924(c)(l)(A)(ii) count. On appeal, Avile contends that his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were violated by the inclusion of the § 924(c)(l)(A)(ii) count of conviction in a superseding indictment filed on October 31, 2006, more than a year after a complaint charged Avile with possession of a firearm during a drug offense, see id. § 924(c) (1) (A) (i). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Speedy Trial Claim
Avile’s Speedy Trial Act claim fails in light of his guilty plea. “A knowing and voluntary guilty plea waives all nonjurisdictional defects in the prior proceedings,” including a claimed speedy trial violation, “unless the defendant specifically reserves the right to appeal” the issue in writing, having obtained “approval of the court and the consent of the government.” United States v. Coffin, 76 F.3d 494, 496-97 (2d Cir.1996). Because Avile made no such reservation of his speedy trial claim and does not challenge the validity of his plea, we deem this claim waived.
2. Sentencing Remand
The government, on its own initiative, notes that the 84-month consecutive sentence imposed under 18 U.S.C. § 924(c)(1)CA)(ii) was inconsistent with our *662recent decision in United States v. Williams, 558 F.3d 166 (2d Cir.2009), and consents to remand for resentencing. We therefore remand for that purpose.
3. Conclusion
For the foregoing reasons, the judgment of conviction is AFFIRMED in part, and the case is REMANDED for resentencing in light of United States v. Williams, 558 F.3d 166 (2d Cir.2009).
. The judgment references subsection (i) of 18 U.S.C. § 924(c)(1)(A), but it is apparent from the record that subsection (ii), which addresses the ''brandish[ing]” of a firearm and imposes a seven-year mandatory minimum sentence, was the provision at issue here. See Plea Tr. at 20-22 (noting brandishing element); Sentencing Tr. at 4, 13 (referring to “7-year mandatory minimum” and imposing such a sentence). On remand and after providing any notice it considers appropriate, the district court may amend the written judgment as permitted by Fed.R.Crim.P. 36.
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OPINION
PER CURIAM.
Frankie Thomas appeals pro se from an order of the United States District Court for the Middle District of Pennsylvania dismissing his petition for Writ of Audita Querela as an improper attempt to circumvent the prior authorization requirement for second or successive motions pursuant to 28 U.S.C. § 2255. We will summarily affirm.
In 1997, Thomas was sentenced to a total of 322 months’ imprisonment upon conviction for armed bank robbery and carrying a firearm in relation to a crime of violence. We affirmed Thomas’s convictions and sentence on appeal. See United States v. Thomas, No. 97-7387, 149 F.3d 1166 (judgment entered March 13, 1998). The District Court denied Thomas’s first motion to vacate sentence under 28 U.S.C. § 2255 and we declined to issue a certificate of appealability. See United States v. Thomas, No. 99-3050 (order entered August 12, 1999). He filed a second § 2255 motion in 2001, which the District Court denied as an unauthorized second or suc*671cessive motion. Thomas did not file an appeal. Thomas submitted two applications under 28 U.S.C. § 2244 seeking our authorization to file a second or successive § 2255 motion, each of which was denied. In 2005, Thomas filed a § 2241 petition, which the District Court dismissed for lack of jurisdiction; this Court dismissed the appeal. In 2007, he filed a motion raising claims pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255, which the District Court dismissed. We summarily affirmed the dismissal of the § 3582(c)(2) claims as frivolous and declined to issue a certificate of appealability as to the § 2255 claims based on Thomas’s failure to make a substantial showing of the denial of a constitutional right. See United States v. Thomas, No. 07-1502 (3d Cir. Jul. 17, 2007).
In 2008, Thomas challenged his sentence under the All Writs Act, 28 U.S.C. § 1651, by filing a petition for writ of audita quere-la in the District Court. He claimed that he should be re-sentenced under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the District Court wrongly treated the guidelines as mandatory at his sentencing. The District Court dismissed the petition, holding that the proper means of challenging his sentence was through a petition filed under § 2255. The District Court noted, however, that Thomas was required to seek our permission before he could file a second or successive § 2255 motion in the District Court. Thomas filed this timely appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Upon de novo review of the record and careful consideration of Thomas’s submissions on appeal, we conclude that no substantial question is presented on appeal and that summary action is warranted. See LAR 27.4 and I.O.P. 10.6.
After the District Court dismissed Thomas’s petition, we decided Massey v. United States, 581 F.3d 172 (3d Cir.2009). In Massey, the petitioner sought audita querela relief under the All Writs Act based on a Booker claim, after the District Court had denied § 2255 relief. We affirmed the District Court’s denial of the audita querela petition, holding that Massey’s sole means for raising his Booker claim was through § 2255. We emphasized that § 2255 is the means to collaterally attack a federal conviction or sentence, except in the rare instance, not present in Massey, where § 2255 is determined to be “inadequate or ineffective.” Id. at 174. Here, as in Massey, Thomas’s inability to satisfy the AEDPA’s gatekeeping requirements for filing a second or successive § 2255 motion to vacate his sentence does not render § 2255 “inadequate or ineffective,” and, thus, he may not seek audita querela relief. Massey, 581 F.3d at 174.
Accordingly, we will affirm the District Court’s order dismissing Thomas’s petition for a writ of audita querela.
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OPINION
PER CURIAM.
David Webb, proceeding pro se, appeals the order of the United States District Court for the Eastern District of Pennsylvania dismissing his personal injuiy action as frivolous. We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
In June 2009, Webb initiated this diversity action against Perkiomen School by filing a complaint and motion for leave to proceed before the district court in forma pauperis. Webb, a resident of South Dakota, alleged that, in May 1981, while a boarding student at the Perkiomen School, he was assaulted by a group of students. He alleged that the Perkiomen School employees never reported the incident to the police or to his legal guardian. On June 80, 2009, the district court granted Webb leave to proceed in forma pauperis but dismissed the complaint pursuant to 28 U.S.C. § 1915(e) on statute of limitations grounds. Webb timely appealed the ruling to this Court.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary view over the district court’s sua sponte dismissal. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Because we have granted Webb in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We will dismiss an appeal under § 1915(e) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The district court correctly dismissed Webb’s claim under § 1915(e)(2)(B), as his claim lacked an arguable basis in law. The statute of limitations for Webb’s action is governed by the personal injury statute of limitations in Pennsylvania, the state in which his cause of action accrued. That period is two years, subject to any state law tolling provisions which are not inconsistent with federal law. 42 Pa. Cons.Stat Ann. § 5524; see also Lake v. Arnold, 232 F.3d 360, 366 (3d Cir.2000). Although the statute of limitations is an affirmative defense, a district court may sua sponte dismiss a complaint under § 1915(e) where the defense is obvious from the complaint and no development of the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.2006); Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.2001); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.1995).
Here, the incident underlying Webb’s complaint occurred in 1981, making it apparent from the face of the complaint that the two-year statute of limitations expired well before he filed suit in 2009. In his argument in support of his appeal, Webb asserts that the statute of *677limitations should be equitably tolled because the defendants fraudulently concealed the assaults by failing to notify the local police and his legal guardian. However, equitable tolling occurs where the defendants have intentionally misinformed or concealed information from the plaintiff and the limitations period begins when the plaintiff knows or had reason to know of the injury forming the basis for the action. Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir.1998); Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833, 835 (1967). In his complaint, Webb alleges details of the assault, including awakening in a hospital room in May 1981. He also alleges that he has sustained many years of pain and suffering and subsequent injuries since the original injury in 1981. In other words, Webb expressly admits in his complaint that he learned of his injuries more than two years before he filed this lawsuit in June 2009.1
Accordingly, Webb’s claims were filed well beyond the expiration of the applicable statute of limitations and are now time barred. We find that there was no need to provide Webb an opportunity to amend his complaint because any amendment would have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002) (noting that amendment “must be permitted ... unless it would be inequitable or futile”). Because we conclude that Webb’s appeal lacks an arguable basis in law, we dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
. To the extent that Webb may have been a minor at the time of the assaults, Pennsylvania's “minor tolling statute," which tolls the two-year statute of limitations period until the minor plaintiff reaches the age of 18, also does not apply, since Webb filed more than twenty years following the incident. See 42 Pa. Cons.Stat. Ann. § 5533(b); see also Fanc-sali ex rel. Fancsali v. Univ. Health Ctr. of Pittsburgh, 563 Pa. 439, 761 A.2d 1159, 1164 (2000).
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SUMMARY ORDER
Plaintiff-Appellant Luis M. Roman appeals from a judgment of the United States District Court for the Northern *663District of New York (Sharpe, J.). The district court dismissed Roman’s complaint against officials at Bare Hill Correctional Facility, where Roman is incarcerated, alleging due process, Eighth Amendment, and equal protection violations related to the denial of Roman’s request to visit the deathbed and the funeral of his wife. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues.
‘We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). To survive a motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While pro se complaints must contain sufficient factual allegations to meet the plausibility standard, we read them with “special solicitude” and interpret them “to raise the strongest arguments that they suggest." Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (citation and internal quotation marks omitted).
Roman’s arguments on appeal are limited to his equal protection claim. He asserts that other inmates have been allowed to visit sick and dying relatives when he has not been permitted to do so. A plaintiff raising a selective treatment claim must show that he was treated differently from other similarly-situated individuals and that the differential treatment was based on impermissible considerations. See Skehan v. Village of Mamaroneck, 465 F.3d 96, 110 (2d Cir.2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.2008). We agree with the district court that Roman has failed to plead that his selective treatment was based on impermissible considerations. Roman has not established that he is a member of a protected class, nor has he established an equal protection violation under a ‘class of one’ theory. See Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant Ajai Bhatia, pro se, appeals the district court’s grant of the Appellees’ motion to dismiss his complaint raising claims under 42 U.S.C. §§ 1983 and 1985 and alleging various state law violations arising from the Appellees’ involvement in state child custody and criminal investigations and proceedings against Bhatia. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
‘We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
To establish a constitutional violation under § 1983, a plaintiff must show that: (1) the defendants acted under color of state law; and (2) the defendants’ actions resulted in a deprivation of plaintiffs constitutional rights. See Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir.2004). Private parties are generally not amenable to suit under § 1983, because they are not state actors, although they may be liable where “there is a sufficiently close nexus between the State and the challenged action of the [private party] so that the action of the latter may be fairly treated as that of the State itself,” *665Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); see also Flagg v. Yonkers Savings and Loan Ass’n, 396 F.3d 178, 187 (2d Cir.2005), or where they are “jointly engaged with state officials” in a conspiracy to deprive the plaintiff of his constitutional rights, Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
To state a claim under § 1985, a plaintiff must allege: (1) a conspiracy, (2) an intent or purpose to deprive a person of equal protection of the law; (3) an act in furtherance of the conspiracy; and (4) an injury to a person, including injury to property, person, or constitutional right. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Dismissal of “conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights” is appropriate. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983).
Here, liberally construing Bhatia’s pro se complaint, he failed to allege facts sufficient to establish that there was a “nexus” between the State and the Appellees, or that the Appellees jointly engaged in a conspiracy with state officials to deprive him of his civil rights, and the complaint therefore did not state a plausible claim that the Appellees were liable under § 1983. See Flagg, 396 F.3d at 187; Adickes, 398 U.S. at 152, 90 S.Ct. 1598; see also Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Moreover, his claims of a conspiracy to violate his civil rights were vague and conclusory, and insufficient to state a plausible claim under § 1985. See Sommer, 709 F.2d at 175.
Having dismissed the claims over which it had original jurisdiction, the district court properly declined to exercise its supplemental jurisdiction and dismissed Bhatia’s pendent state claims. See 28 U.S.C. § 1367(c)(3). Because the district court properly dismissed Bhatia’s complaint on the merits of his claims, we need not reach the Appellees’ contention that the claims were also time-barred.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants appeal from a judgment of the district court (Chin, J.), entered March 24, 2008, granting defendants’ motion to dismiss the Consolidated Amended Complaint (“Complaint”) for failure to state a claim.
We review the district court’s dismissal of a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) de novo, accepting all factual allegations as true, but “giving no effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir.2007).
Legg Mason, Inc. (“Legg Mason”) is a global asset management company. On June 24, 2005, Legg Mason announced that it would swap its brokerage unit for Citigroup Inc.’s worldwide asset management business (“CAM”). The CAM swap closed on December 1, 2005. On March 6, 2006, Legg Mason announced that Citigroup would sell approximately eight million shares of Legg Mason common stock in a secondary public offering pursuant to a registration statement on Form S-3 filed by Legg Mason on February 27, 2006. The prospectus related to the secondary offering became effective on March 9, 2006.
Plaintiffs brought claims under sections 11 and 12(a)(2) of the Securities Act of 1933, alleging that the registration statement did not disclose the following: First, at the time of the secondary offering, Legg Mason had negotiated a deal whereby Peter Wilby, a significant CAM asset manager, would work at Legg Mason until March 2006 to help with the transition, and would then leave to start his own firm, Stone Harbor Investment Partners, and would take $8.5 billion in client assets, as well as dozens of CAM employees, with him. Second, at the time of the secondary offering, Legg Mason was experiencing
a dramatic increase in integration-related expenses that was far in excess of the expense figures that [Legg Mason] had internally budgeted for.... Legg Mason had spent considerable amounts of time and resources on integrating its operations with those acquired in the CAM Swap. As a result of these efforts, Legg Mason was expending increasing amounts of resources on integrating its operations and was attempting to eliminate redundant costs but was largely unsuccessful.... For example, following the CAM Swap, [Legg Mason] was granted an eighteen (18) month license to use Citigroup’s propriety information technology (IT) systems that were used to handle trading and customer processes, among other things. If Legg Mason was unable to develop its own systems and transition to them before the expiration of the 18 months, it would have to pay substantial licensing fees to Citigroup. As a result, [Legg Mason] was feverishly attempting to create the IT systems necessary to run the CAM busi*668ness and was expending increasing amounts of capital to do so. The expenses associated with this IT project far exceeded [Legg Mason’s] internal expectations and was negatively impacting [Legg-Mason’s] continuing operations.
J.A. 68-69 (emphases added).
Section 11 imposes civil liability on issuers and other signatories of a registration statement if the statement “contain[s] an untrue statement of a material fact or omit[s] to state a material fact required to be stated therein or necessary to make the statements therein not misleading.” 15 U.S.C. § 77k(a). Section 12(a)(2) imposes liability for any person who offers or sells a security “by means of a prospectus ... which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.” 15 U.S.C. § 771(a)(2). The test for whether an alleged misstatement or omission is material under section 12(a)(2) or section 11 is identical to that under section 10(b) of the Securities and Exchange Act of 1934: whether there is a “ ‘substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)); Rombach v. Chang, 355 F.3d 164, 178 n. 11 (2d Cir.2004). The total mix of information may include “information already in the public domain and facts known or reasonably available to the shareholders.” United Paperworkers Int’l Union v. Int’l Paper Co., 985 F.2d 1190, 1199 (2d Cir.1993). See also id. (“Thus, when the subject of a proxy solicitation has been widely reported in readily available media, shareholders may be deemed to have constructive notice of the facts reported, and the court may take this into consideration in determining whether representations in or omissions from the proxy statement are materially misleading.”).
In this case, news of Wilby’s departure was already in the public domain. It was reported in three newspaper articles and three statements filed with the SEC on December 8, 2005, January 9, 2006, and February 24, 2006. The SEC filings explained that, in anticipation of the swap, Legg Mason had come to a mutually beneficial agreement with a select group of CAM portfolio managers, including Peter Wilby, whereby the group would remain employed with CAM through March 31, 2006 to assist in the transition, and would then be allowed to start a new firm based in New York. See, e.g., Salomon Brothers Series Funds Inc., Supplement to the Prospectuses of the Funds filed with the SEC pursuant to 17 C.F.R. § 230.497, at 1-2 (Dec. 8, 2005). One of the newspaper articles reported that the bulk of Wilby’s high-yield and emerging markets debt teams, between twenty-four and thirty-six people, would go with him to the new firm, and the “firm should start life with more than enough assets under management to be a going concern.” Douglas Appell, Warm Welcome Expected for New Fixed-Income Shop, Pensions & Investments, Dec. 12, 2005, at 26. The article also quoted a consultant who suggested that if Wilby’s new firm could attract between $5 and $8 billion of CAM assets during its first year, “it will be off to a strong start.” Id. Because Wilby’s departure, and the fact that he would take with him CAM employees and client assets, was already in the public domain and was reasonably available to Legg Mason shareholders, the omission of the information from the regis*669tration statement at issue here was not material.
Plaintiffs’ arguments on this point are without merit. First, United Paperworkers is distinguishable. In that case, we considered a misleading proxy statement that was mailed directly to shareholders in connection with a proposal submitted for shareholder vote. 985 F.2d at 1193-94. In that context, we held that corporate documents that were not distributed to shareholders entitled to vote on the proposal should rarely be considered part of the total mix of information “reasonably available,” and that sporadic news reports did not give shareholders “sufficient notice that proxy solicitation statements sent directly to them by the company may be misleading,” and therefore should also not be considered part of the total mix of information that would clarify the company’s representations in its proxy materials. Id. at 1199 (emphasis added). Because the instant case is not about an allegedly misleading proxy statement mailed to shareholders in connection with a shareholder vote, the fact that corporate documents and news reports were not mailed directly to potential investors is not relevant to whether they can be considered part of the total mix of information reasonably available. Moreover, we agree with Judge Ross that “Hit stands to reason that the universe of information a shareholder would consider when voting in a proxy contest concerning a specific issue is smaller than, or at least different from, the corresponding universe an investor would consider when deciding whether to purchase or ... retain a publicly traded stock in the first instance.” In re Keyspan Corp. Sec. Litig., 383 F.Supp.2d 358, 374 n. 6 (E.D.N.Y.2003).
As for plaintiffs’ argument that we may not consider the SEC filings or newspaper articles on a motion to dismiss, although these documents are not mentioned on the face of the complaint, we have previously held that on a Rule 12(b)(6) motion to dismiss a court may consider matters of which judicial notice may be taken, Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406, 425 (2d Cir.2008), including “the fact that press coverage ... or regulatory filings contained certain information, without regard to the truth of their contents.” Id. As in Staehr, the press articles and SEC filings here were offered only to show that information about Wilby’s departure was publicly available, not for the truth of the matters asserted therein. Id. at 425-26. The fact that defendants did not formally file a request for judicial notice is not relevant, as Federal Rule of Evidence 201(c) provides that “[a] court may take judicial notice, whether requested or not.”
Finally, we agree with the district court that the Complaint’s allegation regarding the “dramatic increase in integration-related expenses that was far in excess of the expense figures that the Company had internally budgeted for” is too conclusory to permit us to determine whether plaintiffs have adequately pleaded materiality. As discussed above, sections 11 and 12(a)(2) impose civil liability only for statements or omissions that are material. Yet this complaint does not contain a single factual allegation relating to the magnitude of the expense increase, which would be necessary to determine whether plaintiffs pleaded a substantial likelihood that the disclosure of the expense increase would have been viewed by a reasonable investor as significantly altering the total mix of available information. Under Bell Atlantic Corp. v. Twombly, a complaint requires “more than labels and conclusions”; instead, “[fjactual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. 544, 555, *670127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Merely alleging that the expense increase was “dramatic,” or “far in excess” of the figures the company had internally budgeted for, is not sufficient to plead a material omission. Neither is the allegation that Legg Mason was spending “increasing amounts of resources on integrating its operations” with Citigroup’s in order to avoid paying “substantial” licensing fees, or that this was “negatively impacting” Legg-Mason’s continuing operations. “While we accept as true the factual allegations in the complaint ..., we are not bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 148-49 (2d Cir.2008) (internal quotation marks and brackets omitted). Therefore, this claim was properly dismissed.
We have considered all of plaintiffs’ other arguments and find them without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant Raymond Wright, pro se, appeals the district court’s dismissal of his complaint for failure to state a cause of action. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review the district court’s sua sponte dismissal of a complaint de novo, bearing in mind that, under 28 U.S.C. § 1915(e)(2), a court shall dismiss a complaint if it determines that it fails to state a cause of action upon which relief can be granted. Here, the district court properly dismissed Wright’s complaint for failure to state a claim. Wright’s complaint alleged claims under: (1) the Fair Credit Reporting Act (“FCRA”); (2) the Fair Debt Collection Practices Act (“FDCPA”); (3) the First Amendment and the Due Process Clause; and (4) state contract law.
First, Wright’s claim under the FCRA failed as a matter of law because neither Zabarkes nor the Waterside Plaza, L.L.C. qualify as “consumer reporting agencies” under 15 U.S.C. § 1681a(f), and the rent demand letter and the validation notice were not “consumer reports” under 15 U.S.C. § 1681a(d)(l). Second, Wright’s claim under the FDCPA was time-barred because the events at issue in his complaint — namely, the issuance of the rent demand letter and the validation notice— occurred in April 2006, and he did not to file his complaint until September 2007. See 15 U.S.C. § 1692k(d) (an action under the FDCPA must be brought within one *672year from the date the violation occurred). Wright’s assertion that a September 2006 letter from the Defendants should have been used as the date his claims accrued is without merit, because nothing in that letter concerns rent collection. Third, Wright’s constitutional claims failed to state a cause of action because he failed to include any factual allegations indicating a nexus between the conduct of the Defendants — all of whom are private actors— and state action. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (“The Constitution’s protections of individual liberty ... apply in general only to action by the government.”). The mere provision of federal subsidies to the Defendants does not transform their otherwise private conduct into state action. See Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (cited in Horvath v. Westport Library Ass’n, 362 F.3d 147, 152 (2d Cir.2004)).
Accordingly, because the district court properly dismissed Wright’s federal claims, it did not err by declining to exercise supplemental jurisdiction over his state contract claim. See Castellano v. Bd. of Trs. of Police Officers’ Variable Supplements Fund, 937 F.2d 752, 758 (2d Cir.1991) (“Certainly, if federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”). We have considered all of Wright’s remaining claims of error and determined them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Defendant-appellant Jack O’Connor appeals from an opinion and order of the United States District Court for the District of Vermont (Sessions, J.) dated August 7, 2008, granting plaintiff-appellee Rico Diamond’s motion for judgment as a matter of law regarding his Fourth Amendment claim and awarding him nominal damages of $1 and reasonable attorneys’ fees. Diamond cross-appeals an order of the district court denying his motion for judgment as a matter of law and motion for a new trial as against defendant-cross-appellee the City of South Burlington (“South Burlington”), dated September 24, 2008. We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review de novo a district court’s decision to grant or deny a motion for judgment as a matter of law. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.2008). We “review all of the evidence in the record” and “must draw all reasonable inferences in favor of the non-moving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A court “may grant a motion for judgment as a matter of law ‘only if it can conclude that, with credibility assessments made against the moving party and all inferences drawn against the moving party, a reasonable juror would have been compelled to accept the view of the moving party.’ ” Zellner v. Summerlin, 494 F.3d 344, 370-71 (2d Cir.2007) (quoting Piesco v. Koch, 12 F.3d 332, 343 (2d Cir.1993) (emphasis added)).
We review a district court’s decision on a motion for a new trial for abuse of *678discretion. India.com, Inc. v. Dalal, 412 F.3d 315, 320 (2d Cir.2005). “A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” DeFalco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (internal quotation marks omitted).
A. O’Connor’s Appeal
O’Connor contends that the district court erred when it granted Diamond’s motion for judgment as a matter of law because the evidence demonstrated that O’Connor had probable cause to seize Diamond’s money.
As a general matter, probable cause exists when “officers have knowledge of, or reasonably trustworthy information as to, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Zellner, 494 F.3d at 368. In the context of this case, O’Connor had to demonstrate probable cause that there was “a ‘nexus’ between the seized property [i.e., Diamond’s money] and illegal drug activity.” United States v. Daccarett, 6 F.3d 37, 56 (2d Cir.1993). O’Connor identifies several facts and circumstances that he believes established probable cause of such a nexus. We agree with the district court, however, that the facts and circumstances of which O’Connor was aware at the time he seized Diamond’s money were insufficient to establish probable cause.
Although a large amount of money might be one factor to be included in the overall totality of the circumstances surrounding a probable cause determination, see Maryland v. Pringle, 540 U.S. 366, 372 n. 2, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003); United States v. $2,500 in U.S. Currency, 689 F.2d 10, 16 (2d Cir.1982), this Court has never held that a large amount of cash is per se evidence of drug-related illegal activity. Furthermore, although Diamond had ties to New York City, used two different names when he checked into the hotel, and had a criminal record for third-degree robbery, those facts are insufficient to establish probable cause of drug-related activity, particularly where the evidence at the scene indicated that (1) Diamond resided in Vermont, (2) he did not try to conceal the fact that he went by two names, and he explained to the police why this was so, and (3) his most recent conviction for robbery was in 1973.
We agree with the district court that the facts available to O’Connor were sufficient to create a reasonable suspicion of drug-related conduct, but those facts supported only a brief detention of Diamond’s money to enable O’Connor to conduct a further investigation. See, e.g., United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 86 (2d Cir.2002). They certainly did not support the lengthy detention that occurred in this case. See id. at 88 (noting that an overnight detention “could not possibly be justified” based on reasonable suspicion); see also United States v. Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (noting that the Court has “never approved a seizure of [a] person for the prolonged 90-minute period involved” in that case).
O’Connor argues that he is entitled to qualified immunity, even if he lacked probable cause to seize Diamond’s money. An officer who lacks probable cause is entitled to qualified immunity if he or she can establish “arguable probable cause,” which exists “ ‘if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.’” Escalera v. Lunn, 361 F.3d 737, *679743 (2d Cir.2004) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991)). Given the facts and circumstances available to O’Connor, we do not believe that arguable probable cause existed to support the seizure of Diamond’s money. Consequently, O’Connor was not entitled to qualified immunity.
B. Diamond’s Cross-Appeal
After the jury returned its verdict, Diamond moved for judgment as a matter of law or, in the alternative, a new trial with respect to the portion of the verdict that was in favor of South Burlington. A district court may grant a motion for judgment as a matter of law after a jury has returned its verdict “only where there is ‘such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [people] could not arrive at a verdict against him.’ ” Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 597 (2d Cir.2001) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992)). Given this standard and the evidence presented at trial, the district court did not err when it denied Diamond’s Rule 50 motion. Nor did it abuse its discretion when it denied Diamond’s motion for a new trial.
We have considered all of parties’ remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Appellant Total Communications Inc. (“Total”) appeals from decisions of the United States District Court for the District of Connecticut (Bryant, /.), entering judgment in favor of Appellee Sharon Hubbard on a jury verdict and denying Appellant’s judgment as a matter of law under Federal Rule of Civil Procedure 50. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review the denial of a Rule 50 motion de novo, requiring the movant to show that there is no legally sufficient evidentiary basis for a reasonable jury to find in favor of the non-movant. Cross v. N.Y. City Transit Auth., 417 F.3d 241, 247-48 (2d Cir.2005). In reviewing the sufficiency of the evidence, we draw all inferences in favor of the non-moving party, which means we cannot determine the credibility of witnesses, weigh conflicting evidence, or substitute our judgment for that of the jury. Gronowski v. Spencer, 424 F.3d 285, 291-92 (2d Cir.2005). We may not retry the case ourselves. Id. at 292. We may only overturn a jury’s verdict when no evidence exists to support that result, or there exists such overwhelming evidence in favor of the movant-appellant that the verdict is unreasonable. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995).
In order to prove a claim of retaliation under Title VII, as well as Connecticut state law, see Brittell v. Dep’t of Corr., 247 Conn. 148, 717 A.2d 1254, 1264 (1998), a plaintiff must demonstrate that (1) she participated in a protected activity known to the defendant, (2) she suffered an adverse employment action, and (3) there exists a causal connection between the protected activity and the adverse employment action. Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991). “Protected activity” includes opposition to a discriminatory *681employment practice or participation in any investigation, proceeding, or hearing under Title VIL See 42 U.S.C. § 2000e-3(a). To demonstrate participation in a protected activity, a plaintiff in a retaliation case need not prove that the conditions she protested amounted to an actual Title VII violation; she need only establish that she had a good faith, reasonable belief that a violation occurred. Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134 (2d Cir.1999). Neither must the plaintiff formally oppose the alleged discriminatory behavior. This court has interpreted the opposition clause to protect not only the filing of formal discrimination charges, but also “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of coworkers who have filed formal charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990).
Total argues that the October 27, 2003 email from Appellee Sharon Hubbard (“Hubbard”) to her supervisor was not sufficient as a matter of law to constitute protected activity for purposes of a Title VII retaliation claim. However, the jury reasonably found that the email complaint alleged differential treatment between Hubbard and the men in her department. Indeed, the second sentence of the complaint refers to “guys”: “IT IS REALLY NICE TO FIND OUT THAT THE ENTIRE SERVICE DEPT GOT THEIR REVIEW/RAISES THAT WERE DUE IN JULY 2003. WHICH WOULD BE 10-12 GUYS/TECHNICIANS.” (emphasis added). This informal complaint of discrimination is enough to satisfy the protected activity requirement under Title VII.
Total also argues that Hubbard’s termination occurred too far in time after the email complaint to qualify as retaliatory. To prove a retaliation claim indirectly, a plaintiff must demonstrate that the adverse employment action closely followed the protected activity. Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir.2001). We have never established a temporal bright line beyond which an adverse employment action cannot qualify as retaliatory. See Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.2001). In this case, Hubbard’s termination happened a little over four months after her email complaint. Wherever the outer limit, this case does not present it, and the jury was entitled to find that there was a causal connection.
Total also argues that Hubbard did not present sufficient evidence to support a conclusion that Total’s reasons for firing Hubbard were pretextual. Total claims Hubbard was fired for excessive personal Internet use. Hubbard, however, established that other Total employees used the Internet as much, or more, than she did, and that only she and two other women were monitored. The evidence she introduced called into question Total’s explanation for her termination. The jury was entitled to find that explanation to be pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The jury’s conclusion that Total fired Hubbard in retaliation for her discrimination complaint was not unreasonable. We have reviewed Total’s other arguments and find them meritless.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Petitioner Sania Mathakutha, a native and citizen of South Africa, seeks review of *683the November 2, 2007 order of the BIA, which affirmed the March 21, 2006 decision of Immigration Judge (“IJ”) Michael W. Straus denying her request for a continuance, but granting voluntary departure. In re Sania Mathakutha, No. A98 038 703 (B.I.A. Nov. 2, 2007), aff'g No. A98 038 703 (Immig. Ct. N.Y. City Mar. 21, 2006). Mathakutha also seeks review of the February 18, 2009 order of the BIA denying her motion to reopen. In re Sania Mathakutha, No. A98 038 703 (B.I.A. Feb. 18, 2009). We review the denial of a motion for continuance and the denial of a motion to reopen for abuse of discretion. See Rajah v. Mukasey, 544 F.3d 449, 453 (2d Cir.2008); Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir.2006). In doing so, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Because Mathakutha does not specifically challenge the denial of her motion for a continuance in her brief on appeal, we deem that argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir.2005); Norton v. Sam’s Chib, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).
Mathakutha argues that the BIA abused its discretion in refusing to reopen her proceedings to consider her eligibility for adjustment of status. We identify no abuse of discretion where (1) the motion to reopen was filed more than one year after entry of the agency’s final order of removal and was, thus, time-barred (a fact that petitioner does not contest), see 8 U.S.C. § 1229a(c)(7)(c), and (2) Mathakutha failed to depart during the voluntary departure period, see Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (B.I.A.2002); cf. Singh v. Gonzales, 468 F.3d 135, 139 (2d Cir.2006).1
We have considered Mathakutha’s other arguments and conclude that they are without merit. Accordingly, the petition for review is DENIED.
. We note further that Mathakutha failed both to apply for adjustment of status and to show an approved 1-130 visa, cf. Huarcaya v. Mukasey, 550 F.3d 224, 230 (2d Cir.2008); Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir.2007), but this point was not addressed by the BIA.
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SUMMARY ORDER
Petitioner Xiaoehen Vass, a native and citizen of the People’s Republic of China, seeks review of the July 7, 2004 order of the BIA, which affirmed the April 11, 2003 decision of Immigration Judge (“IJ”) Douglas B. Schoppert denying her request for an indefinite continuance of her removal proceedings. In re Xiaochen Vass, No. A74 755 942 (B.I.A. July 7, 2004), aff'g No. A74 755 942 (Immig. Ct. N.Y. City Apr. 11, 2003). We review the denial of a motion for continuance “under a highly deferential standard of abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.2006). In doing so, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Vass argues that the “IJ failed to consider the circumstances of the filing of [her] two prior 1-130 applications” when denying her request for a continuance. Petr.’s Br. at 11. This argument is belied by the IJ’s decision, which specifically references those circumstances. See IJ Decision at 3. Vass also submits that the IJ “erred in denying the adjournment request based on the finding th[at] she did not have good moral character.” Petr.’s Br. at 13. This is also contradicted by the record. The IJ did not conclude that Vass lacked good moral character but, rather, found that Vass’s payment of $2,500 to an agency to obtain a green card without asking any questions did not reflect “good faith” on her part. IJ Decision at 3.
Finally, Vass contends that the IJ’s finding that she was “several years away from eligibility for adjustment of status,” id. at 2, was “not a reasonable basis to assess whether an adjournment should be granted,” Petr.’s Br. at 14. This argument is without merit. We have held that, where a petitioner is not eligible for adjustment of status “[a]t the time of the hearing,” she *685has “no right to yet another delay in the proceedings so that [she] could attempt to become eligible for such relief.” Morgan v. Gonzales, 445 F.3d at 552. We identify no abuse of discretion in the denial of Vass’s motion for a continuance where she was already granted four adjournments to explore her eligibility for relief from removal, her two previous marriage-based visa petitions had been denied, and her third such visa application had not yet been approved. See id. at 553 (‘We disagree with [petitioner’s] contention that it was outside the range of permissible decisions for the IJ to deny the requested continuance even though there was a visa petition filed on [petitioner’s] behalf that was pending.”).1
Accordingly, the petition for review is DENIED.
. The BIA has recently delineated a set of factors relevant to applications for continuance of removal proceedings while an alien’s visa petition is pending. See In re Hashmi, 24 I. & N. Dec. 785 (BIA 2009). After reviewing Hashmi and the IJ's decision below, we conclude that no remand is required because Hashmi "amounts to a formal articulation of the standard that was actually applied in the BIA's resolution of [Vass]'s case.” Xiu Fen Xia v. Mukasey, 510 F.3d 162, 167 (2d Cir.2007), and the IJ’s decision fell "within the range of permissible decisions” available to it within that standard, Morgan v. Gonzales, 445 F.3d at 552.
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SUMMARY ORDER
Plaintiff-appellant Annie Ludwig appeals from a judgment of the United States District Court for the Western District of New York (Larimer, J.) dated May 6, 2008, granting defendants-appellees’ motion for summary judgment and dismissing the amended complaint with prejudice. We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the grant of summary judgment de novo, “examining the evidence in the light most favorable to, and drawing all inferences in favor of, the non-movant.” Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.2003). 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).
To establish a prima facie case of retaliation under Title VII,1 Ludwig must “adduce evidence sufficient to permit a rational trier of fact to find” that (1) she engaged in an activity protected by Title VII, (2) “the employer was aware of this activity,” (3) “the employer took adverse action against [her],” and (4) “a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.” Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir.2006) (internal quotation marks omitted). If the employee establishes a prima facie case, “a presumption of retaliation arises” and the employer then must “articulate a legitimate, non-retaliatory reason for the adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005). “[O]nce an employer offers such proof, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action.” Id.; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Assuming arguendo that Ludwig established a prima facie case of retaliation, her claim nonetheless fails because she failed to demonstrate that the defendants’ legitimate, non-retaliatory reasons for her reassignment were pretextual. Ludwig contends that these reasons were pretextual because they were inconsistent. Although a defendant’s inconsistent justifications for an employment action can be sufficient for a plaintiff to establish pretext, see Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 97-98 (2d Cir.1999), we see no inconsistencies in the various articulations offered by the defendants for why Ludwig was reassigned to the Regional Forensic Unit.
We have considered all of Ludwig’s arguments and find them to be without merit. Accordingly, for the reasons set forth *687above, the judgment of the district court is hereby
AFFIRMED.
. Ludwig’s claim under the New York State Human Rights Law is subject to the same analysis. See Salomon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n. 9 (2d Cir.2008) (“We typically treat Title VII and NYHRL discrimination claims as analytically identical, applying the same standard of proof to both claims.”).
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SUMMARY ORDER
Defendant Hyang Ran Kim appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Hellerstein, J.), following a jury verdict finding Kim guilty of (1) conspiracy to transport women in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421 and (2) conspiracy to induce, entice and persuade women to travel in interstate and foreign commerce for the purpose of pros*688titution in violation of 18 U.S.C. § 2422. We assume the parties’ familiarity with the factual and procedural history of this case, as well as the issues on appeal.
In an opinion filed concurrently with this summary order, we reverse the 18 U.S.C. § 2421 conviction of Kim’s co-defendant Jae Shim because the district court erred in failing to instruct the jury that Shim had to know the women were transported in interstate commerce to be guilty of the offense. See United States v. Grandt, No. 08-1834, (_,_ 2009). The judge similarly failed to instruct the jury in Kim’s case.
Therefore, we REVERSE Kim’s judgment of conviction under 18 U.S.C. § 2421 and VACATE and REMAND her conviction under 18 U.S.C. § 2422 to permit the district court to review her conviction under § 2422 and to resentence her.
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SUMMARY ORDER
Plaintiff-Appellant Luis M. Roman appeals from a judgment of the United States District Court for the Northern *663District of New York (Sharpe, J.). The district court dismissed Roman’s complaint against officials at Bare Hill Correctional Facility, where Roman is incarcerated, alleging due process, Eighth Amendment, and equal protection violations related to the denial of Roman’s request to visit the deathbed and the funeral of his wife. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues.
‘We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). To survive a motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While pro se complaints must contain sufficient factual allegations to meet the plausibility standard, we read them with “special solicitude” and interpret them “to raise the strongest arguments that they suggest." Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (citation and internal quotation marks omitted).
Roman’s arguments on appeal are limited to his equal protection claim. He asserts that other inmates have been allowed to visit sick and dying relatives when he has not been permitted to do so. A plaintiff raising a selective treatment claim must show that he was treated differently from other similarly-situated individuals and that the differential treatment was based on impermissible considerations. See Skehan v. Village of Mamaroneck, 465 F.3d 96, 110 (2d Cir.2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.2008). We agree with the district court that Roman has failed to plead that his selective treatment was based on impermissible considerations. Roman has not established that he is a member of a protected class, nor has he established an equal protection violation under a ‘class of one’ theory. See Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant Ajai Bhatia, pro se, appeals the district court’s grant of the Appellees’ motion to dismiss his complaint raising claims under 42 U.S.C. §§ 1983 and 1985 and alleging various state law violations arising from the Appellees’ involvement in state child custody and criminal investigations and proceedings against Bhatia. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
‘We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
To establish a constitutional violation under § 1983, a plaintiff must show that: (1) the defendants acted under color of state law; and (2) the defendants’ actions resulted in a deprivation of plaintiffs constitutional rights. See Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir.2004). Private parties are generally not amenable to suit under § 1983, because they are not state actors, although they may be liable where “there is a sufficiently close nexus between the State and the challenged action of the [private party] so that the action of the latter may be fairly treated as that of the State itself,” *665Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); see also Flagg v. Yonkers Savings and Loan Ass’n, 396 F.3d 178, 187 (2d Cir.2005), or where they are “jointly engaged with state officials” in a conspiracy to deprive the plaintiff of his constitutional rights, Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
To state a claim under § 1985, a plaintiff must allege: (1) a conspiracy, (2) an intent or purpose to deprive a person of equal protection of the law; (3) an act in furtherance of the conspiracy; and (4) an injury to a person, including injury to property, person, or constitutional right. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993). Dismissal of “conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights” is appropriate. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983).
Here, liberally construing Bhatia’s pro se complaint, he failed to allege facts sufficient to establish that there was a “nexus” between the State and the Appellees, or that the Appellees jointly engaged in a conspiracy with state officials to deprive him of his civil rights, and the complaint therefore did not state a plausible claim that the Appellees were liable under § 1983. See Flagg, 396 F.3d at 187; Adickes, 398 U.S. at 152, 90 S.Ct. 1598; see also Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Moreover, his claims of a conspiracy to violate his civil rights were vague and conclusory, and insufficient to state a plausible claim under § 1985. See Sommer, 709 F.2d at 175.
Having dismissed the claims over which it had original jurisdiction, the district court properly declined to exercise its supplemental jurisdiction and dismissed Bhatia’s pendent state claims. See 28 U.S.C. § 1367(c)(3). Because the district court properly dismissed Bhatia’s complaint on the merits of his claims, we need not reach the Appellees’ contention that the claims were also time-barred.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants appeal from a judgment of the district court (Chin, J.), entered March 24, 2008, granting defendants’ motion to dismiss the Consolidated Amended Complaint (“Complaint”) for failure to state a claim.
We review the district court’s dismissal of a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) de novo, accepting all factual allegations as true, but “giving no effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir.2007).
Legg Mason, Inc. (“Legg Mason”) is a global asset management company. On June 24, 2005, Legg Mason announced that it would swap its brokerage unit for Citigroup Inc.’s worldwide asset management business (“CAM”). The CAM swap closed on December 1, 2005. On March 6, 2006, Legg Mason announced that Citigroup would sell approximately eight million shares of Legg Mason common stock in a secondary public offering pursuant to a registration statement on Form S-3 filed by Legg Mason on February 27, 2006. The prospectus related to the secondary offering became effective on March 9, 2006.
Plaintiffs brought claims under sections 11 and 12(a)(2) of the Securities Act of 1933, alleging that the registration statement did not disclose the following: First, at the time of the secondary offering, Legg Mason had negotiated a deal whereby Peter Wilby, a significant CAM asset manager, would work at Legg Mason until March 2006 to help with the transition, and would then leave to start his own firm, Stone Harbor Investment Partners, and would take $8.5 billion in client assets, as well as dozens of CAM employees, with him. Second, at the time of the secondary offering, Legg Mason was experiencing
a dramatic increase in integration-related expenses that was far in excess of the expense figures that [Legg Mason] had internally budgeted for.... Legg Mason had spent considerable amounts of time and resources on integrating its operations with those acquired in the CAM Swap. As a result of these efforts, Legg Mason was expending increasing amounts of resources on integrating its operations and was attempting to eliminate redundant costs but was largely unsuccessful.... For example, following the CAM Swap, [Legg Mason] was granted an eighteen (18) month license to use Citigroup’s propriety information technology (IT) systems that were used to handle trading and customer processes, among other things. If Legg Mason was unable to develop its own systems and transition to them before the expiration of the 18 months, it would have to pay substantial licensing fees to Citigroup. As a result, [Legg Mason] was feverishly attempting to create the IT systems necessary to run the CAM busi*668ness and was expending increasing amounts of capital to do so. The expenses associated with this IT project far exceeded [Legg Mason’s] internal expectations and was negatively impacting [Legg-Mason’s] continuing operations.
J.A. 68-69 (emphases added).
Section 11 imposes civil liability on issuers and other signatories of a registration statement if the statement “contain[s] an untrue statement of a material fact or omit[s] to state a material fact required to be stated therein or necessary to make the statements therein not misleading.” 15 U.S.C. § 77k(a). Section 12(a)(2) imposes liability for any person who offers or sells a security “by means of a prospectus ... which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.” 15 U.S.C. § 771(a)(2). The test for whether an alleged misstatement or omission is material under section 12(a)(2) or section 11 is identical to that under section 10(b) of the Securities and Exchange Act of 1934: whether there is a “ ‘substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available.’ ” Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)); Rombach v. Chang, 355 F.3d 164, 178 n. 11 (2d Cir.2004). The total mix of information may include “information already in the public domain and facts known or reasonably available to the shareholders.” United Paperworkers Int’l Union v. Int’l Paper Co., 985 F.2d 1190, 1199 (2d Cir.1993). See also id. (“Thus, when the subject of a proxy solicitation has been widely reported in readily available media, shareholders may be deemed to have constructive notice of the facts reported, and the court may take this into consideration in determining whether representations in or omissions from the proxy statement are materially misleading.”).
In this case, news of Wilby’s departure was already in the public domain. It was reported in three newspaper articles and three statements filed with the SEC on December 8, 2005, January 9, 2006, and February 24, 2006. The SEC filings explained that, in anticipation of the swap, Legg Mason had come to a mutually beneficial agreement with a select group of CAM portfolio managers, including Peter Wilby, whereby the group would remain employed with CAM through March 31, 2006 to assist in the transition, and would then be allowed to start a new firm based in New York. See, e.g., Salomon Brothers Series Funds Inc., Supplement to the Prospectuses of the Funds filed with the SEC pursuant to 17 C.F.R. § 230.497, at 1-2 (Dec. 8, 2005). One of the newspaper articles reported that the bulk of Wilby’s high-yield and emerging markets debt teams, between twenty-four and thirty-six people, would go with him to the new firm, and the “firm should start life with more than enough assets under management to be a going concern.” Douglas Appell, Warm Welcome Expected for New Fixed-Income Shop, Pensions & Investments, Dec. 12, 2005, at 26. The article also quoted a consultant who suggested that if Wilby’s new firm could attract between $5 and $8 billion of CAM assets during its first year, “it will be off to a strong start.” Id. Because Wilby’s departure, and the fact that he would take with him CAM employees and client assets, was already in the public domain and was reasonably available to Legg Mason shareholders, the omission of the information from the regis*669tration statement at issue here was not material.
Plaintiffs’ arguments on this point are without merit. First, United Paperworkers is distinguishable. In that case, we considered a misleading proxy statement that was mailed directly to shareholders in connection with a proposal submitted for shareholder vote. 985 F.2d at 1193-94. In that context, we held that corporate documents that were not distributed to shareholders entitled to vote on the proposal should rarely be considered part of the total mix of information “reasonably available,” and that sporadic news reports did not give shareholders “sufficient notice that proxy solicitation statements sent directly to them by the company may be misleading,” and therefore should also not be considered part of the total mix of information that would clarify the company’s representations in its proxy materials. Id. at 1199 (emphasis added). Because the instant case is not about an allegedly misleading proxy statement mailed to shareholders in connection with a shareholder vote, the fact that corporate documents and news reports were not mailed directly to potential investors is not relevant to whether they can be considered part of the total mix of information reasonably available. Moreover, we agree with Judge Ross that “Hit stands to reason that the universe of information a shareholder would consider when voting in a proxy contest concerning a specific issue is smaller than, or at least different from, the corresponding universe an investor would consider when deciding whether to purchase or ... retain a publicly traded stock in the first instance.” In re Keyspan Corp. Sec. Litig., 383 F.Supp.2d 358, 374 n. 6 (E.D.N.Y.2003).
As for plaintiffs’ argument that we may not consider the SEC filings or newspaper articles on a motion to dismiss, although these documents are not mentioned on the face of the complaint, we have previously held that on a Rule 12(b)(6) motion to dismiss a court may consider matters of which judicial notice may be taken, Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406, 425 (2d Cir.2008), including “the fact that press coverage ... or regulatory filings contained certain information, without regard to the truth of their contents.” Id. As in Staehr, the press articles and SEC filings here were offered only to show that information about Wilby’s departure was publicly available, not for the truth of the matters asserted therein. Id. at 425-26. The fact that defendants did not formally file a request for judicial notice is not relevant, as Federal Rule of Evidence 201(c) provides that “[a] court may take judicial notice, whether requested or not.”
Finally, we agree with the district court that the Complaint’s allegation regarding the “dramatic increase in integration-related expenses that was far in excess of the expense figures that the Company had internally budgeted for” is too conclusory to permit us to determine whether plaintiffs have adequately pleaded materiality. As discussed above, sections 11 and 12(a)(2) impose civil liability only for statements or omissions that are material. Yet this complaint does not contain a single factual allegation relating to the magnitude of the expense increase, which would be necessary to determine whether plaintiffs pleaded a substantial likelihood that the disclosure of the expense increase would have been viewed by a reasonable investor as significantly altering the total mix of available information. Under Bell Atlantic Corp. v. Twombly, a complaint requires “more than labels and conclusions”; instead, “[fjactual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. 544, 555, *670127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Merely alleging that the expense increase was “dramatic,” or “far in excess” of the figures the company had internally budgeted for, is not sufficient to plead a material omission. Neither is the allegation that Legg Mason was spending “increasing amounts of resources on integrating its operations” with Citigroup’s in order to avoid paying “substantial” licensing fees, or that this was “negatively impacting” Legg-Mason’s continuing operations. “While we accept as true the factual allegations in the complaint ..., we are not bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 148-49 (2d Cir.2008) (internal quotation marks and brackets omitted). Therefore, this claim was properly dismissed.
We have considered all of plaintiffs’ other arguments and find them without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant Raymond Wright, pro se, appeals the district court’s dismissal of his complaint for failure to state a cause of action. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review the district court’s sua sponte dismissal of a complaint de novo, bearing in mind that, under 28 U.S.C. § 1915(e)(2), a court shall dismiss a complaint if it determines that it fails to state a cause of action upon which relief can be granted. Here, the district court properly dismissed Wright’s complaint for failure to state a claim. Wright’s complaint alleged claims under: (1) the Fair Credit Reporting Act (“FCRA”); (2) the Fair Debt Collection Practices Act (“FDCPA”); (3) the First Amendment and the Due Process Clause; and (4) state contract law.
First, Wright’s claim under the FCRA failed as a matter of law because neither Zabarkes nor the Waterside Plaza, L.L.C. qualify as “consumer reporting agencies” under 15 U.S.C. § 1681a(f), and the rent demand letter and the validation notice were not “consumer reports” under 15 U.S.C. § 1681a(d)(l). Second, Wright’s claim under the FDCPA was time-barred because the events at issue in his complaint — namely, the issuance of the rent demand letter and the validation notice— occurred in April 2006, and he did not to file his complaint until September 2007. See 15 U.S.C. § 1692k(d) (an action under the FDCPA must be brought within one *672year from the date the violation occurred). Wright’s assertion that a September 2006 letter from the Defendants should have been used as the date his claims accrued is without merit, because nothing in that letter concerns rent collection. Third, Wright’s constitutional claims failed to state a cause of action because he failed to include any factual allegations indicating a nexus between the conduct of the Defendants — all of whom are private actors— and state action. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (“The Constitution’s protections of individual liberty ... apply in general only to action by the government.”). The mere provision of federal subsidies to the Defendants does not transform their otherwise private conduct into state action. See Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (cited in Horvath v. Westport Library Ass’n, 362 F.3d 147, 152 (2d Cir.2004)).
Accordingly, because the district court properly dismissed Wright’s federal claims, it did not err by declining to exercise supplemental jurisdiction over his state contract claim. See Castellano v. Bd. of Trs. of Police Officers’ Variable Supplements Fund, 937 F.2d 752, 758 (2d Cir.1991) (“Certainly, if federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”). We have considered all of Wright’s remaining claims of error and determined them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Defendant-Appellant Asia Pulp & Paper Co. (“APP”) and its three co-defendant Indonesian operating companies (“PIOCs,” for “Principal Indonesian Operating Companies”) appeal from a February 6, 2008, 2008 WL 465169, order and May 28, 2008 judgment of the United States District Court for the Southern District of New York (Pogue, J.) granting Plaintiff-Appellee Export-Import Bank of the United States (“Ex-Im”) summary judgment on its claims of breach of contract, breach of promissory notes, and breach of guarantee. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
With respect to the three loans to the PIOCs that APP guaranteed, APP expressly waived all defenses, which would include estoppel. For the loans not guaranteed by APP, to the extent that the PIOCs may have relied on representations made to them by individual employees of Ex-Im, “it is axiomatic that the United States is not bound by the unauthorized acts of its agents. Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.” Doe v. Civiletti, 635 F.2d 88, 96 (2d Cir.1980) (internal quotation marks omitted). It is clear from the allegations and the record that Ex-Im’s negotiators did not have authority to bind Ex-Im to the terms of the debt restructuring without official approval, which was not given. Because statements of an individual with apparent authority do not suffice as a basis for an estoppel claim *674against the federal government, it is irrelevant what the PIOCs may have thought about the scope of the negotiators’ authority-
We have considered Appellants’ arguments regarding inadequate service of process and the application of the deliberative process privilege, including Appellants’ arguments regarding the denial of discovery, and find them to be without merit. Accordingly, the order and judgment of the district court granting summary judgment and awarding damages to Plaintiff-Appellee Export-Import Bank of the United States are hereby AFFIRMED.
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SUMMARY ORDER
Appellant Total Communications Inc. (“Total”) appeals from decisions of the United States District Court for the District of Connecticut (Bryant, /.), entering judgment in favor of Appellee Sharon Hubbard on a jury verdict and denying Appellant’s judgment as a matter of law under Federal Rule of Civil Procedure 50. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review the denial of a Rule 50 motion de novo, requiring the movant to show that there is no legally sufficient evidentiary basis for a reasonable jury to find in favor of the non-movant. Cross v. N.Y. City Transit Auth., 417 F.3d 241, 247-48 (2d Cir.2005). In reviewing the sufficiency of the evidence, we draw all inferences in favor of the non-moving party, which means we cannot determine the credibility of witnesses, weigh conflicting evidence, or substitute our judgment for that of the jury. Gronowski v. Spencer, 424 F.3d 285, 291-92 (2d Cir.2005). We may not retry the case ourselves. Id. at 292. We may only overturn a jury’s verdict when no evidence exists to support that result, or there exists such overwhelming evidence in favor of the movant-appellant that the verdict is unreasonable. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995).
In order to prove a claim of retaliation under Title VII, as well as Connecticut state law, see Brittell v. Dep’t of Corr., 247 Conn. 148, 717 A.2d 1254, 1264 (1998), a plaintiff must demonstrate that (1) she participated in a protected activity known to the defendant, (2) she suffered an adverse employment action, and (3) there exists a causal connection between the protected activity and the adverse employment action. Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991). “Protected activity” includes opposition to a discriminatory *681employment practice or participation in any investigation, proceeding, or hearing under Title VIL See 42 U.S.C. § 2000e-3(a). To demonstrate participation in a protected activity, a plaintiff in a retaliation case need not prove that the conditions she protested amounted to an actual Title VII violation; she need only establish that she had a good faith, reasonable belief that a violation occurred. Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134 (2d Cir.1999). Neither must the plaintiff formally oppose the alleged discriminatory behavior. This court has interpreted the opposition clause to protect not only the filing of formal discrimination charges, but also “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of coworkers who have filed formal charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990).
Total argues that the October 27, 2003 email from Appellee Sharon Hubbard (“Hubbard”) to her supervisor was not sufficient as a matter of law to constitute protected activity for purposes of a Title VII retaliation claim. However, the jury reasonably found that the email complaint alleged differential treatment between Hubbard and the men in her department. Indeed, the second sentence of the complaint refers to “guys”: “IT IS REALLY NICE TO FIND OUT THAT THE ENTIRE SERVICE DEPT GOT THEIR REVIEW/RAISES THAT WERE DUE IN JULY 2003. WHICH WOULD BE 10-12 GUYS/TECHNICIANS.” (emphasis added). This informal complaint of discrimination is enough to satisfy the protected activity requirement under Title VII.
Total also argues that Hubbard’s termination occurred too far in time after the email complaint to qualify as retaliatory. To prove a retaliation claim indirectly, a plaintiff must demonstrate that the adverse employment action closely followed the protected activity. Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir.2001). We have never established a temporal bright line beyond which an adverse employment action cannot qualify as retaliatory. See Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.2001). In this case, Hubbard’s termination happened a little over four months after her email complaint. Wherever the outer limit, this case does not present it, and the jury was entitled to find that there was a causal connection.
Total also argues that Hubbard did not present sufficient evidence to support a conclusion that Total’s reasons for firing Hubbard were pretextual. Total claims Hubbard was fired for excessive personal Internet use. Hubbard, however, established that other Total employees used the Internet as much, or more, than she did, and that only she and two other women were monitored. The evidence she introduced called into question Total’s explanation for her termination. The jury was entitled to find that explanation to be pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The jury’s conclusion that Total fired Hubbard in retaliation for her discrimination complaint was not unreasonable. We have reviewed Total’s other arguments and find them meritless.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Petitioner Xiaoehen Vass, a native and citizen of the People’s Republic of China, seeks review of the July 7, 2004 order of the BIA, which affirmed the April 11, 2003 decision of Immigration Judge (“IJ”) Douglas B. Schoppert denying her request for an indefinite continuance of her removal proceedings. In re Xiaochen Vass, No. A74 755 942 (B.I.A. July 7, 2004), aff'g No. A74 755 942 (Immig. Ct. N.Y. City Apr. 11, 2003). We review the denial of a motion for continuance “under a highly deferential standard of abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.2006). In doing so, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Vass argues that the “IJ failed to consider the circumstances of the filing of [her] two prior 1-130 applications” when denying her request for a continuance. Petr.’s Br. at 11. This argument is belied by the IJ’s decision, which specifically references those circumstances. See IJ Decision at 3. Vass also submits that the IJ “erred in denying the adjournment request based on the finding th[at] she did not have good moral character.” Petr.’s Br. at 13. This is also contradicted by the record. The IJ did not conclude that Vass lacked good moral character but, rather, found that Vass’s payment of $2,500 to an agency to obtain a green card without asking any questions did not reflect “good faith” on her part. IJ Decision at 3.
Finally, Vass contends that the IJ’s finding that she was “several years away from eligibility for adjustment of status,” id. at 2, was “not a reasonable basis to assess whether an adjournment should be granted,” Petr.’s Br. at 14. This argument is without merit. We have held that, where a petitioner is not eligible for adjustment of status “[a]t the time of the hearing,” she *685has “no right to yet another delay in the proceedings so that [she] could attempt to become eligible for such relief.” Morgan v. Gonzales, 445 F.3d at 552. We identify no abuse of discretion in the denial of Vass’s motion for a continuance where she was already granted four adjournments to explore her eligibility for relief from removal, her two previous marriage-based visa petitions had been denied, and her third such visa application had not yet been approved. See id. at 553 (‘We disagree with [petitioner’s] contention that it was outside the range of permissible decisions for the IJ to deny the requested continuance even though there was a visa petition filed on [petitioner’s] behalf that was pending.”).1
Accordingly, the petition for review is DENIED.
. The BIA has recently delineated a set of factors relevant to applications for continuance of removal proceedings while an alien’s visa petition is pending. See In re Hashmi, 24 I. & N. Dec. 785 (BIA 2009). After reviewing Hashmi and the IJ's decision below, we conclude that no remand is required because Hashmi "amounts to a formal articulation of the standard that was actually applied in the BIA's resolution of [Vass]'s case.” Xiu Fen Xia v. Mukasey, 510 F.3d 162, 167 (2d Cir.2007), and the IJ’s decision fell "within the range of permissible decisions” available to it within that standard, Morgan v. Gonzales, 445 F.3d at 552.
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SUMMARY ORDER
Plaintiff-appellant Annie Ludwig appeals from a judgment of the United States District Court for the Western District of New York (Larimer, J.) dated May 6, 2008, granting defendants-appellees’ motion for summary judgment and dismissing the amended complaint with prejudice. We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the grant of summary judgment de novo, “examining the evidence in the light most favorable to, and drawing all inferences in favor of, the non-movant.” Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.2003). 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).
To establish a prima facie case of retaliation under Title VII,1 Ludwig must “adduce evidence sufficient to permit a rational trier of fact to find” that (1) she engaged in an activity protected by Title VII, (2) “the employer was aware of this activity,” (3) “the employer took adverse action against [her],” and (4) “a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.” Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir.2006) (internal quotation marks omitted). If the employee establishes a prima facie case, “a presumption of retaliation arises” and the employer then must “articulate a legitimate, non-retaliatory reason for the adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005). “[O]nce an employer offers such proof, the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action.” Id.; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Assuming arguendo that Ludwig established a prima facie case of retaliation, her claim nonetheless fails because she failed to demonstrate that the defendants’ legitimate, non-retaliatory reasons for her reassignment were pretextual. Ludwig contends that these reasons were pretextual because they were inconsistent. Although a defendant’s inconsistent justifications for an employment action can be sufficient for a plaintiff to establish pretext, see Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 97-98 (2d Cir.1999), we see no inconsistencies in the various articulations offered by the defendants for why Ludwig was reassigned to the Regional Forensic Unit.
We have considered all of Ludwig’s arguments and find them to be without merit. Accordingly, for the reasons set forth *687above, the judgment of the district court is hereby
AFFIRMED.
. Ludwig’s claim under the New York State Human Rights Law is subject to the same analysis. See Salomon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n. 9 (2d Cir.2008) (“We typically treat Title VII and NYHRL discrimination claims as analytically identical, applying the same standard of proof to both claims.”).
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SUMMARY ORDER
Defendant Hyang Ran Kim appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Hellerstein, J.), following a jury verdict finding Kim guilty of (1) conspiracy to transport women in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421 and (2) conspiracy to induce, entice and persuade women to travel in interstate and foreign commerce for the purpose of pros*688titution in violation of 18 U.S.C. § 2422. We assume the parties’ familiarity with the factual and procedural history of this case, as well as the issues on appeal.
In an opinion filed concurrently with this summary order, we reverse the 18 U.S.C. § 2421 conviction of Kim’s co-defendant Jae Shim because the district court erred in failing to instruct the jury that Shim had to know the women were transported in interstate commerce to be guilty of the offense. See United States v. Grandt, No. 08-1834, (_,_ 2009). The judge similarly failed to instruct the jury in Kim’s case.
Therefore, we REVERSE Kim’s judgment of conviction under 18 U.S.C. § 2421 and VACATE and REMAND her conviction under 18 U.S.C. § 2422 to permit the district court to review her conviction under § 2422 and to resentence her.
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SUMMARY ORDER
Pro se appellant William S. Gabryluk, a white male, appeals the dismissal of his claims under Title VII, 42 U.S.C. § 2000e-16, and the Fifth Amendment, for employment discrimination based on his race and gender. We review de novo the dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor. See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). In doing so, we assume the parties’ familiarity with the underlying facts and the procedural history of the ease, which we reference only as necessary to explain our decision.
Gabryluk submits that he is entitled to sue the Army defendants under Title VII. See 42 U.S.C. § 2000e-16. It is well-settled, however, that Title VII applies only to civilian employees and does not extend to uniformed members of the armed forces. See Roper v. Dep’t of Army, 832 F.2d 247, 248 (2d Cir.1987) (“[W]e refuse to extend a judicial remedy for alleged discrimination in civilian employment to the dissimilar employment context of the military, especially given the need for deference to the military in matters involving hierarchy and structure of command.”); accord Gonzalez v. Dep’t of Army, 718 F.2d 926, 928-29 (9th Cir.1983); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981). Accordingly, the district court *698properly dismissed Gabryluk’s Title VII claim.
Insofar as Gabryluk sued the United States under the Fifth Amendment for alleged due process and equal protection violations, his claims were properly dismissed as time-barred because they accrued in 1993 and 1994, and Gabryluk did not file his complaint until 2007, well past the six-year statute of limitations established by 28 U.S.C. § 2401(a). See Bertin v. United States, 478 F.3d 489, 492-93 (2d Cir.2007); see also ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir.2003) (permitting affirmance on any ground appearing in the record).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants John Leslie Hales and Peter Gruner appeal from a judgment of the district court (Jones, J.), entered July 9, 2008, granting defendant’s motion for partial summary judgment and dismissing (1) Hales’ claim for violation of Article 9 of the New York Uniform Commercial Code (“U.C.C.”); (2) Gruner’s claim for breach of the settlement agreement; and (3) Hales’ claim for breach of fiduciary duty. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
We review a district court’s ruling on cross motions for summary judgment de novo, “in each case construing the evidence in the light most favorable to the non-moving party.” White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d Cir.2007).
New York C.P.L.R. 214(2) provides a three-year statute of limitations for “an action to recover upon a liability, penalty, or forfeiture created or imposed by statute.” For a liability to be created by statute, the statute “must impose a liability for wrongs not recognized in the common or decisional law.” Banca Commerciale Italiana v. N. Trust Int’l Banking Corp., 160 F.3d 90, 93-94 (2d Cir.1998) (internal quotation marks omitted). As Hales’ claim for breach of Article 9 of the U.C.C. seeks to recover damages not available at common law, it is time barred.
Hales argues that he did not know of the violation until 2007, after he filed suit in this case. However, the three year statute of limitations under N.Y. C.P.L.R. 214 begins to run once a cause of action accrues, or “when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court.” See Motor Vehicle Accident Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 652 N.Y.S.2d 584, 674 N.E.2d 1349, 1352 (1996) (internal quotation marks omitted); see also Bello v. New Eng. Fin., No. 15802-03, 2004 WL 1305515, *8 (N.Y.Sup.Ct. May 20, 2004) (cause of action under CPLR 214(2) accrues “when Plaintiff first suffers compensable injury”). In this case, the violations of Article 9 of the U.C.C. occurred in 2001 and 2002, more than three years before the suit was filed. When Hales discovered the violation is not relevant. See Fine v. State, No. M-69691, 2005 WL 3700727, *2-3 (NY.Ct.Cl. Nov. 15, 2005) (under CPLR 214(2), statute of limitations begins to run on the date of the tort, not the date of discovery). Therefore, the U.C.C. claim is time barred.
We agree with the district court’s thorough and well-reasoned analysis of Gruner’s claim for breach of the settlement agreement and Hales’ claim for breach of fiduciary duty. Therefore, for the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Restituto Embuscado appeals the dismissal of his two complaints pursuant to Fed.R.Civ.P. 37(b) and (d) for failure to comply with the district court’s discovery orders. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Dismissal pursuant to Fed.R.Civ.P. 37 is warranted “where a party fails to comply with the court’s discovery orders willfully, in bad faith, or through fault.” John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988). In determining whether a Rule 37 dismissal is appropriate, a court may consider a variety of factors, including: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance[;] and (4) whether the non-compliant party had been warned *701of the consequences of ... noncompliance.” Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir.2009) (internal quotation marks omitted). We review a Rule 37 dismissal for abuse of discretion. See David Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991).
Here, the record demonstrates thoughtful consideration of all four factors. Specifically, Magistrate Judge Eaton’s report, whose recommendation for dismissal was adopted by Judge McMahon, makes the following findings: (1) over a period of three months, from September through November 2007, Embuscado violated a series of court orders requiring the production of documents and appearance for deposition; (2) Embuscado’s violations were willful and deliberate; (3) Embuscado’s deliberate and persistent noncompliance rendered lesser sanctions inappropriate; and (4) defendants’ October 2007 motion, combined with the magistrate judge’s November 2007 warnings concerning possible dismissal, provided Embuscado with sufficient notice that further delay would result in dismissal. On this record, we identify no abuse of discretion in the district court’s Rule 37 dismissal.
We have considered all of Embuscado’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Vance Jackson was convicted in the Eastern District of New York in 2004 of being a felon in possession of a firearm, see 18 U.S.C. §§ 922(g)(1), 924(a)(2), and sentenced to 40 months’ incarceration followed by 3 years’ supervised release. On this appeal, he challenges the revocation of his supervised release based on the district court’s finding by a preponderance of the evidence that he (1) twice violated New York law by subjecting women to third-degree assault, see N.Y. Penal Law § 120.00-1, and (2) failed to comply with the special condition of his release that he complete a mental health treatment program. We assume familiarity with the facts and record of proceedings, which we reference only as necessary to explain our decision.
1. New York Law Violations
Jackson submits that the district court erred in allowing victim hearsay accounts of the alleged assaults to be introduced into evidence at his revocation hearing. He further argues that the evidence was insufficient to establish the level of victim injury required for third-degree assault. Neither argument is persuasive.
Neither the Confrontation Clause nor the Rules of Evidence proscribe hearsay evidence at revocation hearings. See United States v. Aspinall, 389 F.3d 332, 340 (2d Cir.2004) (noting “the inapplicabili*703ty of the Confrontation Clause and the Federal Rules of Evidence to probation revocation proceedings”), abrogated on other grounds by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), as recognized in United States v. Fleming, 397 F.3d 95, 99 & n. 5 (2d Cir.2005); Fed.R.Crim.P. 32.1, 1979 Advisory Comm. Notes (noting that “the usual rules of evidence need not be applied” during a revocation hearing). Nevertheless, Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure instructs that a defendant facing revocation “is entitled to ... an opportunity to ... question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Construing this rule in United States v. Williams, this court concluded that, if proffered hearsay did not fall within an established exception, a district court had to identify “good cause” to deny the defendant the opportunity to confront the declarant. 443 F.3d 35, 45 (2d Cir.2006). Such a determination requires the district court to “balance, on the one hand, the defendant’s interest in confronting the declarant, against, on the other hand, the government’s reasons for not producing the witness and the reliability of the proffered hearsay.” Id. We review a district court’s Rule 32.1(b)(2)(C) determination for abuse of discretion, see id. at 46, and we identify none in this case.
The government stated that it was not calling the assault victims, Lina Noel and Asheba Ferguson, because neither was then cooperating with the authorities. Noel had recanted her original accusations against Jackson, but the government did not find the recantation credible and did not think she would testify truthfully at a hearing. Meanwhile, Ferguson had repeatedly told a probation officer that she was unwilling to testify against Jackson because of threats she had received, both in person and by telephone. The explanation for not calling Ferguson is more obviously demonstrative of good cause than that pertaining to Noel, see id. at 46-47 (finding good cause where witness had been threatened repeatedly, had changed address and work schedule to avoid further threats, and had refused to testify despite a subpoena). Nevertheless, the reliability of both victims’ hearsay accounts of the defendant’s assaults was so convincingly demonstrated as to preclude a finding of abuse in the decision to admit their statements. Not only had (1) Ferguson offered a number of detailed and consistent accounts of Jackson assaulting her, and (2) Noel provided a sworn and recorded account of her assault by Jackson, but (3) Jackson himself had admitted to physical altercations with the women on the two nights in question. While Jackson tried to minimize the nature of these altercations, (4) contemporaneous hospital records manifested significant injuries consistent with the victims’ accounts of third-degree assault. Notably, with respect to Noel, hospital records indicated a human bite mark to her nose, which, when considered together with Jackson’s admission, strongly established the alleged assault. Moreover, to the extent Noel told treating hospital personnel that she had been assaulted by the father of her child (ie., Jackson), those statements would have been admissible without good cause balancing under the established hearsay exception of Fed. R.Evid. 803(4). See id. at 45.
Accordingly, on this record, we conclude that the district court did not act outside its discretion in admitting the victims’ hearsay accounts. Even if we were to identify error, however, we would consider it harmless because Jackson’s admissions together with the hospital records of the victims’ significant injuries and Noel’s statements in seeking treatment convincingly establish the charged assaults and, *704therefore, the violation of supervised release. In sum, we identify no merit in either Jackson’s hearsay or his sufficiency challenge.
2. Failure To Complete Mental Health Plan
Jackson does not dispute that he did not complete a mental health plan. Nevertheless, he asserts that his good faith efforts to do so precluded a finding of violation. The district court heard testimony and carefully considered the record of missed appointments. We review a district court’s factual findings during a revocation hearing for clear error, United States v. Carlton, 442 F.3d 802, 810 (2d Cir.2006), and identify no such error in its determination that defendant had not made a good faith effort to comply with this condition of supervision.
3. The Reasonableness of the Sentence
Jackson submits that imposition of a two-year sentence, the maximum provided by law, for his supervision violation was so harsh as to be substantively unreasonable. We disagree. Defendant’s crime of conviction, possession of a firearm by a convicted felon, signaled that he posed a real and serious risk of violence. The fact that, after serving a 40-month prison term, Jackson committed two serious assaults while on supervision demonstrated that the original concern not only persisted but that supervision was an inadequate deterrent. On this record, we cannot conclude that the district court’s imposition of a maximum sentence was substantively unreasonable. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (explaining that sentence will be deemed substantively unreasonable only “in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions’ ” (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007))); United States v. Hargrove, 497 F.3d 256, 259 (2d Cir.2007) (recognizing district court’s broad discretion to impose prison term “up to the statutory maximum” for violations of supervised release (internal quotation marks omitted)); United States v. Fleming, 397 F.3d at 100 (upholding maximum two-year sentence for violation of supervised release and anticipating that appellate courts would encounter substantively unreasonable sentences “infrequently”).
We have considered all of Jackson’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Petitioner Miguel Devison, a native of the Dominican Republic proceeding pro se, seeks review of the August 6, 2008, 2008 WL 4065954, order of the BIA dismissing his appeal of an Immigration Judge (“IJ”) order of removal. Devison argues that he is a derivative citizen of the United States and that the Government carried the burden of proving that he was not such a citizen during his removal proceedings, and that the IJ abused his discretion in failing to grant him an adequate number of continuances to pursue his citizenship claim. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As a preliminary matter, we generally lack jurisdiction to review orders of removal against aliens found removable on the basis of convictions for, inter alia, controlled substances offenses and aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C). There is, however, an exception for petitions that raise constitutional claims or questions of law. See Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007).
In this ease, Petitioner was found removable on the basis of such convictions, and we therefore lack jurisdiction over the IJ’s discretionary decision not to grant additional continuances. See Dedji v. Mukasey, 525 F.3d 187 (2d Cir.2008). However, we do have jurisdiction over Demon’s claim to derivative citizenship. See Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir.2008).
Where, as here, the BIA agrees with the IJ’s conclusion and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions— or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). In reviewing an agency decision, we review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The BIA has held that the “burden to establish alienage in a deportation proceeding is upon the Government,” but when there is a claim of citizenship, “one born abroad is presumed to be an alien and must go forward with the evidence to establish his claim to United States citizenship.” Matter of Tijerina-Villarreal, 13 I. & N. Dec. 327, 330 (BIA 1969). We have affirmed a district court’s use of this burden-shifting approach. See Barilla v. Uhl, 27 F.Supp. 746, 746-47 (S.D.N.Y.1939), aff'd per curiam, 108 F.2d 1021 (2d Cir.1940).
Here, if the above framework applies, it fell to Petitioner to demonstrate that he is a citizen of the United States. However, Petitioner failed to provide any evidence that his father was born in St. Thomas and successfully transferred United States citizenship to him. In addition, even if the Government did bear the burden of proving that Petitioner was not a United States citizen, the Government submitted ample evidence of Petitioner’s alienage, including his visa and naturalization applications.
For the foregoing reasons, the petition for review is DENIED.
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*711
SUMMARY ORDER
Appellant Troy Williams appeals from a judgment of the District Court (Ross, J.) convicting him pursuant to a guilty plea of possession with intent to distribute and distribution of fifty grams or more of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(A)(iii), and sentencing him to 120 months’ imprisonment to be followed by five years of supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues raised on appeal.
Williams contends that the mandatory minimum sentence for crack offenses that the District Court applied in sentencing him violates the Equal Protection Clause of the Fifth Amendment, 18 U.S.C. § 3553(a), and the principles set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As we have held in previous cases, the 100-to-1 powder to crack cocaine ratio underlying Williams’s sentence does not violate the Equal Protection Clause of the Fifth Amendment because it is rationally related to the legitimate governmental interest of protecting the public against the greater dangers of crack. See, e.g., United States v. Stevens, 19 F.3d 93 (2d Cir.1994) (“[W]e join six other circuits that have similarly held that the Guidelines’ 100 to 1 ratio of powder cocaine to crack cocaine has a rational basis and does not violate equal protection principles.”); see also United States v. Samas, 561 F.3d 108, 110 (2d Cir.2009); United States v. Lee, 523 F.3d 104, 106 (2d Cir.2008) (“It is not apparent to us that the principles set forth in Kimbrough [v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)] have any application to mandatory minimum sentences imposed by statute.”).
Williams’s contention that the District Court violated the parsimony clause of 18 U.S.C. § 3553(a) by applying the mandatory minimum for convictions under 21 U.S.C. § 841(b)(1)(A) likewise fails, because adopting Williams’s interpretation of that clause would render superfluous sections 3553(e) and (f), which permit departure from a mandatory minimum sentence. Samas, 561 F.3d at 111. Finally, Williams’s sentence did not violate Booker, which rendered the U.S. Sentencing Guidelines- advisory; as we held in Samas, “a district court must impose a statutorily mandated sentence even if the court would reach a different determination if it considered only § 3553(a).” Id. at 110 (citing United States v. Chavez, 549 F.3d 119, 135 (2d Cir.2008)).
We have reviewed Williams’s other contentions and conclude that they are without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants, various creditors of Le Nature’s, Inc. (“Le Nature’s”), challenge the August 28, 2008 decision of the district court (Chin, J.), dismissing their RICO claims against Defendants-Appel-lees as unripe. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.
We have previously concluded,
A cause of action does not accrue under RICO until the amount of damages becomes clear and definite. Thus, a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated.
First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 768 (2d Cir.1994) (internal citations omitted).
Appellants, who seek recovery of the value of a loan they made to Le Nature’s, allege that the Appellees conspired to induce them to invest in Le Nature’s by fraudulently misrepresenting the state of the company’s finances. After Le Nature’s was placed in involuntary bankruptcy, a Liquidation Trust was created, with the support of the Appellants, to marshal *713estate assets and bring claims against those responsible for Le Nature’s collapse. The Trustee has since filed an action in the Western District of Pennsylvania against various defendants, seeking recovery, inter alia, on the loan at issue in this case. Although Appellants acknowledge the possibility of some recovery through the bankruptcy proceedings, they argue that “[i]t does not follow, however, that [Appellants] are barred from seeking to recover for their own injuries in this action merely because they might also recover from the Trust.” We disagree.
Several cases guide our decision. In Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988), we concluded that no cause of action had accrued in a RICO case because it was “impossible to determine the amount of damages that would be necessary to make plaintiff whole, because it is not known whether some or all of the fraudulently transferred funds will be recovered by the corporation.” Specifically, we noted that should the funds be recovered, the plaintiff would recover along with the other creditors and its injury would decrease; accordingly, we determined that the damages were only “speculative” and “unprovable,” and dismissed “any claim for relief based on the lost-debt injury.” Id. Exactly the same reasoning applies to the Appellants here; because of the pending bankruptcy actions, Appellants’ damages are still unknown.
Similarly, in Motorola Credit Corp. v. Uzan, we determined that,
The clear and definite amount of damages suffered by a secured creditor who is fraudulently induced to make a loan and seeks to recover the value of the loan itself, cannot be established until it is finally determined whether the collateral is insufficient to make the plaintiff whole, and if so, by how much.
322 F.3d 130, 135 (2d Cir.2003) (per curiam) (internal quotations omitted). Therefore, the plaintiffs RICO claims against the defendant were not ripe, even though we recognized that recovery in the pending action might be a “forlorn hope.” Id. at 137. Again, this case is analogous; if the Trustee succeeds in its recovery actions, Appellants, as first-in-line creditors, will potentially experience some recovery on the loan they claim damages for here.
Appellants’ attempts to distinguish Bankers Trust and Uzan fail. First, although they argue that Bankers Trust is limited to the narrow circumstances of where the “alleged injury occurs within the bankruptcy case itself and can be redressed within that case before it concludes,” we no language in the opinion or in subsequent opinions confining the holding in that case to its facts. Further, the Appellants argue that Uzan is limited to cases where a plaintiff has failed to exhaust its contractual remedies, but Uzan’s reasoning broadly extends to non-contractual remedies as well.
Therefore, because bankruptcy proceedings are still pending, and because it cannot now be determined whether those proceedings will mitigate or remedy Appellants’ damages, we conclude that their claims are not yet ripe.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Plaintiffs, on behalf of themselves and a putative class of Iraqi citizens who were among the intended beneficiaries of the United Nations Oil-for-Food Programme (“OFFP”), sued defendants under federal and state law for conspiring with the regime of Saddam Hussein to siphon money from the OFFP, thereby enriching the regime and depriving the plaintiff class of the full benefits of the OFFP.1 Plaintiffs here appeal the dismissal of their complaint for lack of Article III standing, challenging the district court’s conclusion that the alleged injury was not sufficiently particularized or concrete to pass constitutional muster. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
We review de novo a district court’s dismissal of a complaint for lack of standing, “accepting as true all material allegations in the complaint and construing the complaint in favor of the complaining party.” Fuentes v. Bd. of Educ., 540 F.3d 145, 148 (2d Cir.2008). To establish Article III standing, a plaintiff must show (1) “injury in fact,” (2) fairly traceable to the defendant’s alleged unlawful conduct, (3) that is likely to be redressed by the requested relief. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “To qualify as a constitutionally sufficient injury-in-fact, the asserted injury must be concrete and particularized as well as actual or imminent, not conjectural or hypothetical.” Kendall v. Employees Ret. Plan of Avon Prods., 561 F.3d 112, 118 (2d Cir.2009) (internal quotation marks omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
We affirm for substantially the reasons stated by the district court in its well-reasoned opinion. First, the alleged injuries were not particular to plaintiffs, but were suffered generally by the population of Iraq. See Lujan v. Defenders of Wildlife, 504 U.S. at 561 n. 1, 112 S.Ct. 2130 (“By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.”). Such a grievance, “suffer[ed] in some indefinite way in common with people generally,” cannot demonstrate an injury-in-fact. Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 344, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks omitted).2 Sec*716ond, the allegation that the Hussein regime would have distributed more benefits to the Iraqi population in general, including plaintiffs, but for the alleged kickback scheme is “conjectural or hypothetical,” not “actual or imminent,” as required to show injury-in-fact. Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. Indeed, as the district court observed, the fact that billions of dollars in oil proceeds remained unspent in the escrow accounts “suggests that something other than the escrow account balance was the constraint on the amount of humanitarian aid distributed by the Hussein regime.” Karim v. AWB Ltd., No. 06 Civ. 15400, 2008 WL 4450265, at *4 (S.D.N.Y. Sept. 30, 2008). Because plaintiffs have faded to allege an injury-in-fact that is fairly traceable to the defendants’ conduct, they lack standing to pursue their claim. The district court therefore correctly dismissed their complaint.3
Accordingly, the judgment of the district court is AFFIRMED.
. Plaintiffs alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(c), (d), and 1964(c); the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq.; the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-l et seq.; and the common law of New York.
. Because we conclude that plaintiffs have not alleged a sufficiently particularized injury, we need not address their various arguments as to the nature of their purported property interest in OFFP escrow account funds or *716goods that might have been purchased therefrom.
. In light of plaintiffs’ lack of Article III standing — "the threshold question in every federal case, determining the power of the court to entertain the suit,” Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (internal quotation marks omitted) — we need not address whether plaintiffs have RICO standing under 18 U.S.C. § 1964(c).
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OPINION
PER CURIAM.
Michael J. Ascenzi, proceeding pro se, appeals from the District Court’s denial of his motion requesting leave to file a certificate of appealability nunc pro tunc. For the reasons that follow, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
Ascenzi initiated a civil rights action in the United States District Court for the Middle District of Pennsylvania in June 2005. On September 25, 2008, 2008 WL 4415598, the District Court entered an opinion and order granting summary judgment in favor of Appellee. The next document entered on the District Court docket is entitled “Request to File Certificate of Appealability Nunc Pro Tunc” and was filed on January 8, 2009. In it, Ascenzi alleges that on October 25, 2008, he submitted a document captioned “Request for Stay of C.O.A. or an Extension” to this *721Court, but it was never docketed. Additionally, he claims to have sent three letters to this Court in October and November of 2008 inquiring about the status of his request. Then, he asserts that on December 7, 2008, he sent a copy of the October 25, 2008 document to this Court, and attaches a copy of the document and a cash slip dated December 11, 2008 in support of his assertion. He concludes by explaining that while he accidentally filed the equivalent of a notice of appeal in this Court rather than in the District Court, allowing him to “restart the filing of a certificate of appealability would not prejudice the defendant in any way.”
The District Court construed Ascenzi’s motion as seeking an enlargement of time nunc pro tunc in which to appeal from its September 25, 2008 Memorandum and Order.1 As the District Court noted, Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure requires that a notice of appeal in a civil case be filed in the district court within thirty days of entry of the judgment or order from which the appeal is being taken. Pursuant to Rule 4(a)(5), the district court may grant an extension of time in which to file a notice of appeal when the party seeking such an extension moves within sixty days of entry of the underlying judgment or order — here, November 24, 2008 — and makes a showing of excusable neglect or good cause. See Fed. RApp. P. 4(a)(5). Under Rule 4(a)(6), the district court may reopen the time in which to file an appeal only if, among other things, the moving party did not receive notice of entry of the judgment or order from which he seeks to appeal. See Fed. RApp. P. 4(a)(6). As none of these circumstances were present in the instant case, the District Court denied Ascenzi’s motion for an enlargement of time on January 12, 2009.
On February 10, 2009, Aseenzi filed a document in the district court entitled “Certificate of Appealability”, which was construed as a notice of appeal. It was followed by a “Memorandum of Law in Support of C.O.A.” in which Aseenzi again asserted that he timely submitted a notice of appeal to this Court, which either lost or misfiled it. The only evidence Aseenzi provided in support of this argument was a copy of the document he allegedly submitted to this Court on October 25, 2008, a copy of a letter he allegedly mailed to this Court on November 18, 2008, and a second letter and cash slip both dated December 7, 2008.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s denial of a motion pursuant to Rules 4(a)(5) or 4(a)(6) of the Federal Rules of Appellate Procedure for abuse of discretion. See Ramseur v. Beyer, 921 F.2d 504, 506 (3d Cir.1990). Because Appellant has been granted in for-ma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal must be dismissed under § 1915(e)(2)(B) if it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). We agree with the District Court that Aseenzi was unable to meet the requirements for either an extension of time in which to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5), or the reopening of the time in which to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). Ascenzi’s bald assertions that he timely filed a notice of *722appeal from the District Court’s underlying judgment do not, without more, demonstrate that he did. Accordingly, we conclude that the District Court acted well within its discretion in denying Ascenzi’s motion.
For the foregoing reasons, we conclude that Ascenzi’s appeal is without legal merit and accordingly, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
. As the District Court correctly indicated, a certificate of appealability is required to appeal from the denial of a petition for a writ of habeas corpus, but is not necessary to appeal from the disposition of a civil rights action. See 28 U.S.C. § 2253.
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OPINION
PER CURIAM.
After his arrest and subsequent conviction for armed robbery and aggravated assault, Ian D. Lemons sued the Atlantic City Police Department (“Department”) and police officers Joseph Rauch and James Herberto pursuant to 42 U.S.C. § 1983 for four million dollars. He claimed that the Department had an illegal pattern and practice of constitutional violations and failed to train and supervise its employees properly. Lemons also alleged he was arrested without probable cause and without a proper arrest warrant. More specifically, he contended that Rauch signed a criminal complaint against him without having firsthand knowledge of the incident and also did not appear before a judicial officer to swear to the complaint. He also claimed that Herberto issued a defective and illegal arrest warrant that led to his false arrest and false imprisonment.
The defendants filed a joint motion for summary judgment, to which Lemons did not respond. The District Court, construing the suit against the Department as a suit against Atlantic City, rejected the Department’s argument that it should be granted summary judgment solely because it could not be sued separately from Atlantic City. Nonetheless, the District Court granted summary judgment in favor of the Department/Atlantic City because Atlantic City could not be liable under § 1983 on a theory of respondeat superior, and because there was no evidence of an illegal policy or custom. The District Court denied the motion for summary judgment as it related to the individual defendants, rejecting their argument based on Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, the District Court permitted the defendants to file a renewed motion to present evidence that the warrants were properly issued and that they had probable cause to arrest Lemons (noting that Lemons, who had not responded to the first motion would not suffer any prejudice).
Rauch and Herberto filed a renewed motion for summary judgment, arguing and presenting evidence to show that they had probable cause to issue warrants and arrest Lemons and that the criminal complaints against Lemons were properly pre*724pared and sworn to before a judicial officer. Lemons responded, arguing that the defendants’ documents were “doctored-up” (meaning that CDR1 forms ordinarily used for summons were made to appear to be CDR2 forms, which are used for arrest warrants); that Herberto improperly administered the oath for the complainant; that Rauch improperly relied on hearsay to file the criminal complaint; that the defendants did not swear to the complaint before a judicial officer; and that the defendants otherwise failed to establish probable cause for Lemons’s arrest. The District Court rejected Lemons’s arguments and granted the renewed motion. Lemons appeals and requests that counsel be appointed for him. The defendants oppose his counsel motion.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a decision to grant summary judgment. See Abramson v. William Paterson College, 260 F.3d 265, 267 (3d Cir. 2001). Upon review, we conclude that Lemons’s appeal must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
It is not entirely clear at this prebriefing stage whether Lemons appeals only from the District Court’s order granting the renewed motion for summary judgment. He specified only the one order in his notice of appeal and attached the District Court’s memorandum and order to his notice of appeal. However, Lemons wrote in his notice of appeal that he appeals from the District Court’s whole order, which included a notation about closing the case. Furthermore, in his motion for appointment of counsel, he alludes to the procedures used by Atlantic City itself in addition to referring to issues relating to the individual defendants. For these reasons, we treat this case as a case in which a designated final order brings up the earlier order for our review. See, e.g., Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir.1999).
The earlier order granting summary judgment in favor of Atlantic City was proper. It is well-established that there is no respondeat superior liability in § 1983 actions. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Furthermore, faced with the motion for summary judgment, Lemons presented no proof of an illegal custom or practice. In fact, he did not respond at all. See Fed. R.Civ.P. 56(e)(2).
Although Lemons did respond to the individual defendants’ subsequent motion for summary judgment, he did not controvert the facts the defendants put into evidence. He contended that he was arrested without probable cause and without a proper arrest warrant based on the use of the wrong form, a “doctored-up” CDR1 form instead of a CDR2 form. Pursuant to Rule 3:2-3 of the New Jersey Court Rules, an arrest warrant should be made on a CDR2 form. A deputy court administrator averred that CDR2 forms were used and that no form was altered. Lemons offered no proof of the contrary, only his allegations, which are insufficient to defeat a motion for summary judgment.
Lemons also contended that Herberto could not administer the oath for the criminal complaints. The defendants presented evidence of presumptively valid complaints sworn before Herberto, the police officer presumptively in charge of the police station. See State v. Ambroselli, 356 N.J.Super. 377, 812 A.2d 1122, 1125 (N.J.App.Div.2003). Under New Jersey law, such a police officer may administer oaths for complaints. See N.J. Stat. Ann. 2B:12-21b. Lemons did not present evidence to controvert the presumption that Herberto was the authorized officer.
*725Lemons also attacked the warrants as fraudulent on the basis that Herberto both administered the oath and issued the warrants. However, the warrants were issued by the deputy court administrator (whose signature appears below the words “date warrant issued”). A deputy court administrator is authorized to issue warrants under New Jersey law. See N.J. Stat. Ann. 2B:12-21(a); see also Ambroselli, 812 A.2d at 1125.
Lemons also complained that Rauch relied on hearsay to file the criminal complaint against him. However, Rauch could rely on hearsay if a substantial basis for crediting the hearsay existed. See Illinois v. Gates, 462 U.S. 213, 219, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); cf. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (citation omitted). The defendants presented evidence that Rauch relied on an anonymous tip that included Lemons’s name and description, information from a “reliable confidential informer,” and a positive identification from the victim. As the District Court did, we conclude that the three independent sources of information, which corroborated one another, constituted a substantial basis for crediting the hearsay. Moreover, although Lemons otherwise argued more generally that his arrest was without probable cause, the evidence presented by the defendants established probable cause.
Lastly, Lemons contended that his arrest was unconstitutional because he was not afforded an opportunity to confront his accuser. However, he did not have a right to confront his accuser at the time his arrest warrants issued. Cf. Crawford v. Washington, 541 U.S. 36, 42-50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (examining the history of the Confrontation Clause).
In short, based on the uncontroverted evidence before the District Court, probable cause existed for Lemons’s arrest and his arrest warrants were properly issued. Accordingly, the District Court properly entered judgment in favor of the defendants. Lemons’s appeal from that decision is without merit. For these reasons, we will dismiss Lemons’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We deny Lemons’s motion for appointment of counsel. See Tabron v. Gmce, 6 F.3d 147, 153 (3d Cir.1993).
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SUMMARY ORDER
Pro se appellant William S. Gabryluk, a white male, appeals the dismissal of his claims under Title VII, 42 U.S.C. § 2000e-16, and the Fifth Amendment, for employment discrimination based on his race and gender. We review de novo the dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor. See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). In doing so, we assume the parties’ familiarity with the underlying facts and the procedural history of the ease, which we reference only as necessary to explain our decision.
Gabryluk submits that he is entitled to sue the Army defendants under Title VII. See 42 U.S.C. § 2000e-16. It is well-settled, however, that Title VII applies only to civilian employees and does not extend to uniformed members of the armed forces. See Roper v. Dep’t of Army, 832 F.2d 247, 248 (2d Cir.1987) (“[W]e refuse to extend a judicial remedy for alleged discrimination in civilian employment to the dissimilar employment context of the military, especially given the need for deference to the military in matters involving hierarchy and structure of command.”); accord Gonzalez v. Dep’t of Army, 718 F.2d 926, 928-29 (9th Cir.1983); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981). Accordingly, the district court *698properly dismissed Gabryluk’s Title VII claim.
Insofar as Gabryluk sued the United States under the Fifth Amendment for alleged due process and equal protection violations, his claims were properly dismissed as time-barred because they accrued in 1993 and 1994, and Gabryluk did not file his complaint until 2007, well past the six-year statute of limitations established by 28 U.S.C. § 2401(a). See Bertin v. United States, 478 F.3d 489, 492-93 (2d Cir.2007); see also ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir.2003) (permitting affirmance on any ground appearing in the record).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Restituto Embuscado appeals the dismissal of his two complaints pursuant to Fed.R.Civ.P. 37(b) and (d) for failure to comply with the district court’s discovery orders. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
Dismissal pursuant to Fed.R.Civ.P. 37 is warranted “where a party fails to comply with the court’s discovery orders willfully, in bad faith, or through fault.” John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988). In determining whether a Rule 37 dismissal is appropriate, a court may consider a variety of factors, including: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance[;] and (4) whether the non-compliant party had been warned *701of the consequences of ... noncompliance.” Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir.2009) (internal quotation marks omitted). We review a Rule 37 dismissal for abuse of discretion. See David Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991).
Here, the record demonstrates thoughtful consideration of all four factors. Specifically, Magistrate Judge Eaton’s report, whose recommendation for dismissal was adopted by Judge McMahon, makes the following findings: (1) over a period of three months, from September through November 2007, Embuscado violated a series of court orders requiring the production of documents and appearance for deposition; (2) Embuscado’s violations were willful and deliberate; (3) Embuscado’s deliberate and persistent noncompliance rendered lesser sanctions inappropriate; and (4) defendants’ October 2007 motion, combined with the magistrate judge’s November 2007 warnings concerning possible dismissal, provided Embuscado with sufficient notice that further delay would result in dismissal. On this record, we identify no abuse of discretion in the district court’s Rule 37 dismissal.
We have considered all of Embuscado’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Vance Jackson was convicted in the Eastern District of New York in 2004 of being a felon in possession of a firearm, see 18 U.S.C. §§ 922(g)(1), 924(a)(2), and sentenced to 40 months’ incarceration followed by 3 years’ supervised release. On this appeal, he challenges the revocation of his supervised release based on the district court’s finding by a preponderance of the evidence that he (1) twice violated New York law by subjecting women to third-degree assault, see N.Y. Penal Law § 120.00-1, and (2) failed to comply with the special condition of his release that he complete a mental health treatment program. We assume familiarity with the facts and record of proceedings, which we reference only as necessary to explain our decision.
1. New York Law Violations
Jackson submits that the district court erred in allowing victim hearsay accounts of the alleged assaults to be introduced into evidence at his revocation hearing. He further argues that the evidence was insufficient to establish the level of victim injury required for third-degree assault. Neither argument is persuasive.
Neither the Confrontation Clause nor the Rules of Evidence proscribe hearsay evidence at revocation hearings. See United States v. Aspinall, 389 F.3d 332, 340 (2d Cir.2004) (noting “the inapplicabili*703ty of the Confrontation Clause and the Federal Rules of Evidence to probation revocation proceedings”), abrogated on other grounds by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), as recognized in United States v. Fleming, 397 F.3d 95, 99 & n. 5 (2d Cir.2005); Fed.R.Crim.P. 32.1, 1979 Advisory Comm. Notes (noting that “the usual rules of evidence need not be applied” during a revocation hearing). Nevertheless, Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure instructs that a defendant facing revocation “is entitled to ... an opportunity to ... question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Construing this rule in United States v. Williams, this court concluded that, if proffered hearsay did not fall within an established exception, a district court had to identify “good cause” to deny the defendant the opportunity to confront the declarant. 443 F.3d 35, 45 (2d Cir.2006). Such a determination requires the district court to “balance, on the one hand, the defendant’s interest in confronting the declarant, against, on the other hand, the government’s reasons for not producing the witness and the reliability of the proffered hearsay.” Id. We review a district court’s Rule 32.1(b)(2)(C) determination for abuse of discretion, see id. at 46, and we identify none in this case.
The government stated that it was not calling the assault victims, Lina Noel and Asheba Ferguson, because neither was then cooperating with the authorities. Noel had recanted her original accusations against Jackson, but the government did not find the recantation credible and did not think she would testify truthfully at a hearing. Meanwhile, Ferguson had repeatedly told a probation officer that she was unwilling to testify against Jackson because of threats she had received, both in person and by telephone. The explanation for not calling Ferguson is more obviously demonstrative of good cause than that pertaining to Noel, see id. at 46-47 (finding good cause where witness had been threatened repeatedly, had changed address and work schedule to avoid further threats, and had refused to testify despite a subpoena). Nevertheless, the reliability of both victims’ hearsay accounts of the defendant’s assaults was so convincingly demonstrated as to preclude a finding of abuse in the decision to admit their statements. Not only had (1) Ferguson offered a number of detailed and consistent accounts of Jackson assaulting her, and (2) Noel provided a sworn and recorded account of her assault by Jackson, but (3) Jackson himself had admitted to physical altercations with the women on the two nights in question. While Jackson tried to minimize the nature of these altercations, (4) contemporaneous hospital records manifested significant injuries consistent with the victims’ accounts of third-degree assault. Notably, with respect to Noel, hospital records indicated a human bite mark to her nose, which, when considered together with Jackson’s admission, strongly established the alleged assault. Moreover, to the extent Noel told treating hospital personnel that she had been assaulted by the father of her child (ie., Jackson), those statements would have been admissible without good cause balancing under the established hearsay exception of Fed. R.Evid. 803(4). See id. at 45.
Accordingly, on this record, we conclude that the district court did not act outside its discretion in admitting the victims’ hearsay accounts. Even if we were to identify error, however, we would consider it harmless because Jackson’s admissions together with the hospital records of the victims’ significant injuries and Noel’s statements in seeking treatment convincingly establish the charged assaults and, *704therefore, the violation of supervised release. In sum, we identify no merit in either Jackson’s hearsay or his sufficiency challenge.
2. Failure To Complete Mental Health Plan
Jackson does not dispute that he did not complete a mental health plan. Nevertheless, he asserts that his good faith efforts to do so precluded a finding of violation. The district court heard testimony and carefully considered the record of missed appointments. We review a district court’s factual findings during a revocation hearing for clear error, United States v. Carlton, 442 F.3d 802, 810 (2d Cir.2006), and identify no such error in its determination that defendant had not made a good faith effort to comply with this condition of supervision.
3. The Reasonableness of the Sentence
Jackson submits that imposition of a two-year sentence, the maximum provided by law, for his supervision violation was so harsh as to be substantively unreasonable. We disagree. Defendant’s crime of conviction, possession of a firearm by a convicted felon, signaled that he posed a real and serious risk of violence. The fact that, after serving a 40-month prison term, Jackson committed two serious assaults while on supervision demonstrated that the original concern not only persisted but that supervision was an inadequate deterrent. On this record, we cannot conclude that the district court’s imposition of a maximum sentence was substantively unreasonable. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (explaining that sentence will be deemed substantively unreasonable only “in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions’ ” (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007))); United States v. Hargrove, 497 F.3d 256, 259 (2d Cir.2007) (recognizing district court’s broad discretion to impose prison term “up to the statutory maximum” for violations of supervised release (internal quotation marks omitted)); United States v. Fleming, 397 F.3d at 100 (upholding maximum two-year sentence for violation of supervised release and anticipating that appellate courts would encounter substantively unreasonable sentences “infrequently”).
We have considered all of Jackson’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Defendant Ronald Washington appeals from his conviction in the United States District Court for the Eastern District of New York (Gershon, J.) for (1) six counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951; and (2) one count of conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951. We assume the parties’ familiarity with the factual and procedural history of this case, as well as the issues raised on appeal.
At trial, the district court allowed the government to introduce evidence of additional robberies not specifically *706charged in the indictment. Washington argues that the introduction of this evidence, particularly the uncharged robbery of the Floral Park Motor Lodge, violated Federal Rule of Evidence 404(b), which provides that “[e]videnee of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”
The evidence was properly admitted, not under Rule 404(b), but as direct evidence of the conspiracy between Washington and his co-conspirator. As we have previously stated, “[w]hen the indictment contains a conspiracy charge, uncharged acts may be admissible as direct evidence of the conspiracy itself.” United States v. Thai, 29 F.Bd 785, 812 (2d Cir.1994). “An act that is alleged to have been done in furtherance of the alleged conspiracy is not an ‘other’ act within the meaning of Rule 404(b); rather it is part of the very act charged.” Id. (alteration omitted); see also United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003); United States v. Miller, 116 F.3d 641, 682 (2d Cir.1997). All of the uncharged robberies occurred within the time frame of the charged conspiracy, which came to an end with the arrest of the defendant after the Floral Park Motor Lodge robbery.
Moreover, we disagree with the defendant that the evidence of the uncharged crimes, and the Floral Park Lodge robbery in particular, unduly prejudiced his robbery charge under Federal Rule of Evidence 403. The evidence presented of the Floral Park Lodge robbery was no more inflammatory than the other evidence the government produced for the robberies, such as the witness accounts of being held at gunpoint. Further, the district court properly provided limiting instructions that the three robberies not separately charged could be considered only with respect to the conspiracy count. “Absent evidence to the contrary, we must presume that juries understand and abide by a district court’s limiting instructions.” United States v. Downing, 297 F.3d 52, 59 (2d Cir .2002).
Next, Washington contends that the district court erred in not severing the Hobbs Act conspiracy count from the substantive robbery count. Federal Rule of Criminal Procedure 8(a) provides that “[t]he indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged ... are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Washington contends that, if the counts had been severed, the government could not have used the conspiracy count “to open the door to the introduction of evidence regarding [Washington’s] commission of the Floral Park Motor Lodge robbery.” Defs Br. 32. Given the district court’s instructions limiting the uncharged crimes evidence to the conspiracy count, however, we see no error in the district court’s decision.
Finally, Washington argues that there was insufficient evidence at trial to prove a conspiracy between Washington and McDonald. Again, we disagree. Although Washington contends that the government lacked proof that McDonald purposefully participated in the conspiracy, the record provides sufficient evidence, through McDonald’s testimony of how she assisted him in his robbery spree, for a jury to find evidence of purposeful behavior to further a conspiracy. See United States v. Chang An-Lo, 851 F.2d 547, 554 (2d Cir.1988).
For the foregoing reasons, we AFFIRM the judgment of the district court.
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SUMMARY ORDER
Petitioner Miguel Devison, a native of the Dominican Republic proceeding pro se, seeks review of the August 6, 2008, 2008 WL 4065954, order of the BIA dismissing his appeal of an Immigration Judge (“IJ”) order of removal. Devison argues that he is a derivative citizen of the United States and that the Government carried the burden of proving that he was not such a citizen during his removal proceedings, and that the IJ abused his discretion in failing to grant him an adequate number of continuances to pursue his citizenship claim. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As a preliminary matter, we generally lack jurisdiction to review orders of removal against aliens found removable on the basis of convictions for, inter alia, controlled substances offenses and aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C). There is, however, an exception for petitions that raise constitutional claims or questions of law. See Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007).
In this ease, Petitioner was found removable on the basis of such convictions, and we therefore lack jurisdiction over the IJ’s discretionary decision not to grant additional continuances. See Dedji v. Mukasey, 525 F.3d 187 (2d Cir.2008). However, we do have jurisdiction over Demon’s claim to derivative citizenship. See Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir.2008).
Where, as here, the BIA agrees with the IJ’s conclusion and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions— or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). In reviewing an agency decision, we review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The BIA has held that the “burden to establish alienage in a deportation proceeding is upon the Government,” but when there is a claim of citizenship, “one born abroad is presumed to be an alien and must go forward with the evidence to establish his claim to United States citizenship.” Matter of Tijerina-Villarreal, 13 I. & N. Dec. 327, 330 (BIA 1969). We have affirmed a district court’s use of this burden-shifting approach. See Barilla v. Uhl, 27 F.Supp. 746, 746-47 (S.D.N.Y.1939), aff'd per curiam, 108 F.2d 1021 (2d Cir.1940).
Here, if the above framework applies, it fell to Petitioner to demonstrate that he is a citizen of the United States. However, Petitioner failed to provide any evidence that his father was born in St. Thomas and successfully transferred United States citizenship to him. In addition, even if the Government did bear the burden of proving that Petitioner was not a United States citizen, the Government submitted ample evidence of Petitioner’s alienage, including his visa and naturalization applications.
For the foregoing reasons, the petition for review is DENIED.
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*711
SUMMARY ORDER
Appellant Troy Williams appeals from a judgment of the District Court (Ross, J.) convicting him pursuant to a guilty plea of possession with intent to distribute and distribution of fifty grams or more of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(A)(iii), and sentencing him to 120 months’ imprisonment to be followed by five years of supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues raised on appeal.
Williams contends that the mandatory minimum sentence for crack offenses that the District Court applied in sentencing him violates the Equal Protection Clause of the Fifth Amendment, 18 U.S.C. § 3553(a), and the principles set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As we have held in previous cases, the 100-to-1 powder to crack cocaine ratio underlying Williams’s sentence does not violate the Equal Protection Clause of the Fifth Amendment because it is rationally related to the legitimate governmental interest of protecting the public against the greater dangers of crack. See, e.g., United States v. Stevens, 19 F.3d 93 (2d Cir.1994) (“[W]e join six other circuits that have similarly held that the Guidelines’ 100 to 1 ratio of powder cocaine to crack cocaine has a rational basis and does not violate equal protection principles.”); see also United States v. Samas, 561 F.3d 108, 110 (2d Cir.2009); United States v. Lee, 523 F.3d 104, 106 (2d Cir.2008) (“It is not apparent to us that the principles set forth in Kimbrough [v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)] have any application to mandatory minimum sentences imposed by statute.”).
Williams’s contention that the District Court violated the parsimony clause of 18 U.S.C. § 3553(a) by applying the mandatory minimum for convictions under 21 U.S.C. § 841(b)(1)(A) likewise fails, because adopting Williams’s interpretation of that clause would render superfluous sections 3553(e) and (f), which permit departure from a mandatory minimum sentence. Samas, 561 F.3d at 111. Finally, Williams’s sentence did not violate Booker, which rendered the U.S. Sentencing Guidelines- advisory; as we held in Samas, “a district court must impose a statutorily mandated sentence even if the court would reach a different determination if it considered only § 3553(a).” Id. at 110 (citing United States v. Chavez, 549 F.3d 119, 135 (2d Cir.2008)).
We have reviewed Williams’s other contentions and conclude that they are without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants, various creditors of Le Nature’s, Inc. (“Le Nature’s”), challenge the August 28, 2008 decision of the district court (Chin, J.), dismissing their RICO claims against Defendants-Appel-lees as unripe. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.
We have previously concluded,
A cause of action does not accrue under RICO until the amount of damages becomes clear and definite. Thus, a plaintiff who claims that a debt is uncollectible because of the defendant’s conduct can only pursue the RICO treble damages remedy after his contractual rights to payment have been frustrated.
First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 768 (2d Cir.1994) (internal citations omitted).
Appellants, who seek recovery of the value of a loan they made to Le Nature’s, allege that the Appellees conspired to induce them to invest in Le Nature’s by fraudulently misrepresenting the state of the company’s finances. After Le Nature’s was placed in involuntary bankruptcy, a Liquidation Trust was created, with the support of the Appellants, to marshal *713estate assets and bring claims against those responsible for Le Nature’s collapse. The Trustee has since filed an action in the Western District of Pennsylvania against various defendants, seeking recovery, inter alia, on the loan at issue in this case. Although Appellants acknowledge the possibility of some recovery through the bankruptcy proceedings, they argue that “[i]t does not follow, however, that [Appellants] are barred from seeking to recover for their own injuries in this action merely because they might also recover from the Trust.” We disagree.
Several cases guide our decision. In Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1106 (2d Cir.1988), we concluded that no cause of action had accrued in a RICO case because it was “impossible to determine the amount of damages that would be necessary to make plaintiff whole, because it is not known whether some or all of the fraudulently transferred funds will be recovered by the corporation.” Specifically, we noted that should the funds be recovered, the plaintiff would recover along with the other creditors and its injury would decrease; accordingly, we determined that the damages were only “speculative” and “unprovable,” and dismissed “any claim for relief based on the lost-debt injury.” Id. Exactly the same reasoning applies to the Appellants here; because of the pending bankruptcy actions, Appellants’ damages are still unknown.
Similarly, in Motorola Credit Corp. v. Uzan, we determined that,
The clear and definite amount of damages suffered by a secured creditor who is fraudulently induced to make a loan and seeks to recover the value of the loan itself, cannot be established until it is finally determined whether the collateral is insufficient to make the plaintiff whole, and if so, by how much.
322 F.3d 130, 135 (2d Cir.2003) (per curiam) (internal quotations omitted). Therefore, the plaintiffs RICO claims against the defendant were not ripe, even though we recognized that recovery in the pending action might be a “forlorn hope.” Id. at 137. Again, this case is analogous; if the Trustee succeeds in its recovery actions, Appellants, as first-in-line creditors, will potentially experience some recovery on the loan they claim damages for here.
Appellants’ attempts to distinguish Bankers Trust and Uzan fail. First, although they argue that Bankers Trust is limited to the narrow circumstances of where the “alleged injury occurs within the bankruptcy case itself and can be redressed within that case before it concludes,” we no language in the opinion or in subsequent opinions confining the holding in that case to its facts. Further, the Appellants argue that Uzan is limited to cases where a plaintiff has failed to exhaust its contractual remedies, but Uzan’s reasoning broadly extends to non-contractual remedies as well.
Therefore, because bankruptcy proceedings are still pending, and because it cannot now be determined whether those proceedings will mitigate or remedy Appellants’ damages, we conclude that their claims are not yet ripe.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Plaintiffs, on behalf of themselves and a putative class of Iraqi citizens who were among the intended beneficiaries of the United Nations Oil-for-Food Programme (“OFFP”), sued defendants under federal and state law for conspiring with the regime of Saddam Hussein to siphon money from the OFFP, thereby enriching the regime and depriving the plaintiff class of the full benefits of the OFFP.1 Plaintiffs here appeal the dismissal of their complaint for lack of Article III standing, challenging the district court’s conclusion that the alleged injury was not sufficiently particularized or concrete to pass constitutional muster. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
We review de novo a district court’s dismissal of a complaint for lack of standing, “accepting as true all material allegations in the complaint and construing the complaint in favor of the complaining party.” Fuentes v. Bd. of Educ., 540 F.3d 145, 148 (2d Cir.2008). To establish Article III standing, a plaintiff must show (1) “injury in fact,” (2) fairly traceable to the defendant’s alleged unlawful conduct, (3) that is likely to be redressed by the requested relief. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “To qualify as a constitutionally sufficient injury-in-fact, the asserted injury must be concrete and particularized as well as actual or imminent, not conjectural or hypothetical.” Kendall v. Employees Ret. Plan of Avon Prods., 561 F.3d 112, 118 (2d Cir.2009) (internal quotation marks omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
We affirm for substantially the reasons stated by the district court in its well-reasoned opinion. First, the alleged injuries were not particular to plaintiffs, but were suffered generally by the population of Iraq. See Lujan v. Defenders of Wildlife, 504 U.S. at 561 n. 1, 112 S.Ct. 2130 (“By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.”). Such a grievance, “suffer[ed] in some indefinite way in common with people generally,” cannot demonstrate an injury-in-fact. Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 344, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks omitted).2 Sec*716ond, the allegation that the Hussein regime would have distributed more benefits to the Iraqi population in general, including plaintiffs, but for the alleged kickback scheme is “conjectural or hypothetical,” not “actual or imminent,” as required to show injury-in-fact. Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. Indeed, as the district court observed, the fact that billions of dollars in oil proceeds remained unspent in the escrow accounts “suggests that something other than the escrow account balance was the constraint on the amount of humanitarian aid distributed by the Hussein regime.” Karim v. AWB Ltd., No. 06 Civ. 15400, 2008 WL 4450265, at *4 (S.D.N.Y. Sept. 30, 2008). Because plaintiffs have faded to allege an injury-in-fact that is fairly traceable to the defendants’ conduct, they lack standing to pursue their claim. The district court therefore correctly dismissed their complaint.3
Accordingly, the judgment of the district court is AFFIRMED.
. Plaintiffs alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(c), (d), and 1964(c); the International Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq.; the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-l et seq.; and the common law of New York.
. Because we conclude that plaintiffs have not alleged a sufficiently particularized injury, we need not address their various arguments as to the nature of their purported property interest in OFFP escrow account funds or *716goods that might have been purchased therefrom.
. In light of plaintiffs’ lack of Article III standing — "the threshold question in every federal case, determining the power of the court to entertain the suit,” Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (internal quotation marks omitted) — we need not address whether plaintiffs have RICO standing under 18 U.S.C. § 1964(c).
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OPINION
PER CURIAM.
Michael J. Ascenzi, proceeding pro se, appeals from the District Court’s denial of his motion requesting leave to file a certificate of appealability nunc pro tunc. For the reasons that follow, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
Ascenzi initiated a civil rights action in the United States District Court for the Middle District of Pennsylvania in June 2005. On September 25, 2008, 2008 WL 4415598, the District Court entered an opinion and order granting summary judgment in favor of Appellee. The next document entered on the District Court docket is entitled “Request to File Certificate of Appealability Nunc Pro Tunc” and was filed on January 8, 2009. In it, Ascenzi alleges that on October 25, 2008, he submitted a document captioned “Request for Stay of C.O.A. or an Extension” to this *721Court, but it was never docketed. Additionally, he claims to have sent three letters to this Court in October and November of 2008 inquiring about the status of his request. Then, he asserts that on December 7, 2008, he sent a copy of the October 25, 2008 document to this Court, and attaches a copy of the document and a cash slip dated December 11, 2008 in support of his assertion. He concludes by explaining that while he accidentally filed the equivalent of a notice of appeal in this Court rather than in the District Court, allowing him to “restart the filing of a certificate of appealability would not prejudice the defendant in any way.”
The District Court construed Ascenzi’s motion as seeking an enlargement of time nunc pro tunc in which to appeal from its September 25, 2008 Memorandum and Order.1 As the District Court noted, Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure requires that a notice of appeal in a civil case be filed in the district court within thirty days of entry of the judgment or order from which the appeal is being taken. Pursuant to Rule 4(a)(5), the district court may grant an extension of time in which to file a notice of appeal when the party seeking such an extension moves within sixty days of entry of the underlying judgment or order — here, November 24, 2008 — and makes a showing of excusable neglect or good cause. See Fed. RApp. P. 4(a)(5). Under Rule 4(a)(6), the district court may reopen the time in which to file an appeal only if, among other things, the moving party did not receive notice of entry of the judgment or order from which he seeks to appeal. See Fed. RApp. P. 4(a)(6). As none of these circumstances were present in the instant case, the District Court denied Ascenzi’s motion for an enlargement of time on January 12, 2009.
On February 10, 2009, Aseenzi filed a document in the district court entitled “Certificate of Appealability”, which was construed as a notice of appeal. It was followed by a “Memorandum of Law in Support of C.O.A.” in which Aseenzi again asserted that he timely submitted a notice of appeal to this Court, which either lost or misfiled it. The only evidence Aseenzi provided in support of this argument was a copy of the document he allegedly submitted to this Court on October 25, 2008, a copy of a letter he allegedly mailed to this Court on November 18, 2008, and a second letter and cash slip both dated December 7, 2008.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s denial of a motion pursuant to Rules 4(a)(5) or 4(a)(6) of the Federal Rules of Appellate Procedure for abuse of discretion. See Ramseur v. Beyer, 921 F.2d 504, 506 (3d Cir.1990). Because Appellant has been granted in for-ma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal must be dismissed under § 1915(e)(2)(B) if it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). We agree with the District Court that Aseenzi was unable to meet the requirements for either an extension of time in which to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5), or the reopening of the time in which to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). Ascenzi’s bald assertions that he timely filed a notice of *722appeal from the District Court’s underlying judgment do not, without more, demonstrate that he did. Accordingly, we conclude that the District Court acted well within its discretion in denying Ascenzi’s motion.
For the foregoing reasons, we conclude that Ascenzi’s appeal is without legal merit and accordingly, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
. As the District Court correctly indicated, a certificate of appealability is required to appeal from the denial of a petition for a writ of habeas corpus, but is not necessary to appeal from the disposition of a civil rights action. See 28 U.S.C. § 2253.
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OPINION
PER CURIAM.
After his arrest and subsequent conviction for armed robbery and aggravated assault, Ian D. Lemons sued the Atlantic City Police Department (“Department”) and police officers Joseph Rauch and James Herberto pursuant to 42 U.S.C. § 1983 for four million dollars. He claimed that the Department had an illegal pattern and practice of constitutional violations and failed to train and supervise its employees properly. Lemons also alleged he was arrested without probable cause and without a proper arrest warrant. More specifically, he contended that Rauch signed a criminal complaint against him without having firsthand knowledge of the incident and also did not appear before a judicial officer to swear to the complaint. He also claimed that Herberto issued a defective and illegal arrest warrant that led to his false arrest and false imprisonment.
The defendants filed a joint motion for summary judgment, to which Lemons did not respond. The District Court, construing the suit against the Department as a suit against Atlantic City, rejected the Department’s argument that it should be granted summary judgment solely because it could not be sued separately from Atlantic City. Nonetheless, the District Court granted summary judgment in favor of the Department/Atlantic City because Atlantic City could not be liable under § 1983 on a theory of respondeat superior, and because there was no evidence of an illegal policy or custom. The District Court denied the motion for summary judgment as it related to the individual defendants, rejecting their argument based on Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, the District Court permitted the defendants to file a renewed motion to present evidence that the warrants were properly issued and that they had probable cause to arrest Lemons (noting that Lemons, who had not responded to the first motion would not suffer any prejudice).
Rauch and Herberto filed a renewed motion for summary judgment, arguing and presenting evidence to show that they had probable cause to issue warrants and arrest Lemons and that the criminal complaints against Lemons were properly pre*724pared and sworn to before a judicial officer. Lemons responded, arguing that the defendants’ documents were “doctored-up” (meaning that CDR1 forms ordinarily used for summons were made to appear to be CDR2 forms, which are used for arrest warrants); that Herberto improperly administered the oath for the complainant; that Rauch improperly relied on hearsay to file the criminal complaint; that the defendants did not swear to the complaint before a judicial officer; and that the defendants otherwise failed to establish probable cause for Lemons’s arrest. The District Court rejected Lemons’s arguments and granted the renewed motion. Lemons appeals and requests that counsel be appointed for him. The defendants oppose his counsel motion.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a decision to grant summary judgment. See Abramson v. William Paterson College, 260 F.3d 265, 267 (3d Cir. 2001). Upon review, we conclude that Lemons’s appeal must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
It is not entirely clear at this prebriefing stage whether Lemons appeals only from the District Court’s order granting the renewed motion for summary judgment. He specified only the one order in his notice of appeal and attached the District Court’s memorandum and order to his notice of appeal. However, Lemons wrote in his notice of appeal that he appeals from the District Court’s whole order, which included a notation about closing the case. Furthermore, in his motion for appointment of counsel, he alludes to the procedures used by Atlantic City itself in addition to referring to issues relating to the individual defendants. For these reasons, we treat this case as a case in which a designated final order brings up the earlier order for our review. See, e.g., Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir.1999).
The earlier order granting summary judgment in favor of Atlantic City was proper. It is well-established that there is no respondeat superior liability in § 1983 actions. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Furthermore, faced with the motion for summary judgment, Lemons presented no proof of an illegal custom or practice. In fact, he did not respond at all. See Fed. R.Civ.P. 56(e)(2).
Although Lemons did respond to the individual defendants’ subsequent motion for summary judgment, he did not controvert the facts the defendants put into evidence. He contended that he was arrested without probable cause and without a proper arrest warrant based on the use of the wrong form, a “doctored-up” CDR1 form instead of a CDR2 form. Pursuant to Rule 3:2-3 of the New Jersey Court Rules, an arrest warrant should be made on a CDR2 form. A deputy court administrator averred that CDR2 forms were used and that no form was altered. Lemons offered no proof of the contrary, only his allegations, which are insufficient to defeat a motion for summary judgment.
Lemons also contended that Herberto could not administer the oath for the criminal complaints. The defendants presented evidence of presumptively valid complaints sworn before Herberto, the police officer presumptively in charge of the police station. See State v. Ambroselli, 356 N.J.Super. 377, 812 A.2d 1122, 1125 (N.J.App.Div.2003). Under New Jersey law, such a police officer may administer oaths for complaints. See N.J. Stat. Ann. 2B:12-21b. Lemons did not present evidence to controvert the presumption that Herberto was the authorized officer.
*725Lemons also attacked the warrants as fraudulent on the basis that Herberto both administered the oath and issued the warrants. However, the warrants were issued by the deputy court administrator (whose signature appears below the words “date warrant issued”). A deputy court administrator is authorized to issue warrants under New Jersey law. See N.J. Stat. Ann. 2B:12-21(a); see also Ambroselli, 812 A.2d at 1125.
Lemons also complained that Rauch relied on hearsay to file the criminal complaint against him. However, Rauch could rely on hearsay if a substantial basis for crediting the hearsay existed. See Illinois v. Gates, 462 U.S. 213, 219, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); cf. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (citation omitted). The defendants presented evidence that Rauch relied on an anonymous tip that included Lemons’s name and description, information from a “reliable confidential informer,” and a positive identification from the victim. As the District Court did, we conclude that the three independent sources of information, which corroborated one another, constituted a substantial basis for crediting the hearsay. Moreover, although Lemons otherwise argued more generally that his arrest was without probable cause, the evidence presented by the defendants established probable cause.
Lastly, Lemons contended that his arrest was unconstitutional because he was not afforded an opportunity to confront his accuser. However, he did not have a right to confront his accuser at the time his arrest warrants issued. Cf. Crawford v. Washington, 541 U.S. 36, 42-50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (examining the history of the Confrontation Clause).
In short, based on the uncontroverted evidence before the District Court, probable cause existed for Lemons’s arrest and his arrest warrants were properly issued. Accordingly, the District Court properly entered judgment in favor of the defendants. Lemons’s appeal from that decision is without merit. For these reasons, we will dismiss Lemons’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We deny Lemons’s motion for appointment of counsel. See Tabron v. Gmce, 6 F.3d 147, 153 (3d Cir.1993).
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OPINION
PER CURIAM.
Siddiq A. Aleem-x, a pro se prisoner, filed this action under 42 U.S.C. § 1983 in the United States District Court for the District of Delaware claiming that defendant Edward Wescott, a corrections officer, violated his constitutional rights by making abusive and harassing statements and gestures to Aleem-x on three occasions. As relief, Aleem-x sought, among other things, damages for emotional and psychological stress. The District Court dismissed the complaint sua sponte under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) as frivolous and for failure to state a claim upon which relief can be granted, explaining that while defendant’s alleged statements and actions could be viewed as unprofessional, verbal abuse and harassment, without more, do not rise to the level of a constitutional violation.
Aleem-x timely appealed and has been granted leave to proceed informa pauper-is. We have appellate jurisdiction under 28 U.S.C. § 1291. Because this appeal lacks any arguable legal merit, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
As the District Court explained, accepting Aleem-x’s allegations as true, he failed to state a viable claim for relief. Verbal abuse of a prisoner, even of the lewd variety alleged here, is not actionable under § 1983. See, e.g., McBride v. Deer, 240 *732F.3d 1287, 1291 n. 3 (10th Cir.2001) (explaining that “acts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment”); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987) (“Defamation is not a deprivation of liberty within the meaning of the due process clause.”). We agree with the District Court that any amendment to the complaint would be futile, and thus see no error in the dismissal without leave to amend.
For these reasons, we will dismiss the appeal.
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OPINION
PER CURIAM.
Juan J. Wood, Jr. petitions for review of an order of the final administrative order of the Department of Homeland Security, Immigration and Customs Enforcement, ordering him removed to Panama. For the reasons that follow, we will deny the petition.
In 1993, Wood was convicted of conspiracy to manufacture a controlled substance in violation of 21 U.S.C. § 846 and attempt to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846 and § 841(a)(1). In July 2008, Wood filed a Form N-600 application for a *735certificate of citizenship based on his birth in 1970 in the Panama Canal Zone and the United States citizenship of his mother. In September 2008, the application was denied because Wood had not shown that either of his parents were United States citizens at the time of his birth. On May 18, 2009, a Final Administrative Removal Order was issued on the basis that Wood is an alien with an aggravated felony conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1228(b). (A.R.001.) Before us is Wood’s petition for review.1
Although 8 U.S.C. § 1252(a)(2)(C) provides that no court has jurisdiction to review a final order of removal against an alien who is removable for having committed an “aggravated felony” as defined by statute, the REAL ID Act provides that nothing in 1252(a)(2)(C) “which eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon petition for review filed with an appropriate court of appeals in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). Under 8 U.S.C. § 1252(b)(5)(A), we have jurisdiction to review a claim of nationality if there is no genuine issue of material fact with respect to that claim. The parties do not dispute the underlying facts of the case. We exercise plenary review over Wood’s claims. Jordon v. Attorney General, 424 F.3d 320, 328 (3d Cir.2005).
Wood challenges the removal order claiming that he is a United States citizen by virtue of his birth in the Panama Canal Zone. Wood’s claim is governed by 8 U.S.C. § 1403(a), which provides that “[a]ny person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States,” is declared to be a United States citizen. Wood does not dispute that at the time of his birth in Panama, neither one of his parents was a United States citizen.2 Accordingly, he did not acquire United States citizenship at birth under 8 U.S.C. § 1403(a).3 He is thus removable due to his aggravated felony conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii) and § 1228(b).
Because this petition for review presents no “substantial question,” we will grant the government’s motion for summary action and summarily deny the petition for review. See Third Circuit LAR 27.4 and I.O.P. 10.6. Wood’s motions for a stay of removal and to expedite issuing a stay of removal are denied as moot.
.Wood filed a petition under 28 U.S.C. § 2241 in the District Court, which was transferred to this Court pursuant to the REAL ID Act. Wood also filed a petition for review. The two matters have been consolidated. Wood has filed motions to stay his removal and to expedite his case. The government has filed responses to the stay motions, as well as a motion for summary action. Wood has also filed a "Reply Brief” which appears to be a response in opposition to summary action, as well as other documents in which he provides further argument.
. The record indicates a finding that Wood's mother was not a United States citizen until 1995.
. Wood argues that he is a United States citizen because he was born in the Canal Zone within a window of time during which certificates of citizenship were authorized. He relies on a prior version of 8 U.S.C. § 1101(a)(38), which, by his own description, concerned such certificates issued to “citizens of the United States.” As discussed, Wood has not shown that he is a citizen of the United States under 8 U.S.C. § 1403.
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OPINION
PER CURIAM.
Mahmoud Gharib Mahmoud Shabayek, a citizen of Egypt, entered the United States as a visitor in 2006. After he overstayed his visa, the Government charged him with *740removability in March 2007. He appeared before an Immigration Judge (“IJ”) and requested voluntary departure, which the IJ granted on June 1, 2007. Shabayek was permitted to voluntarily depart the United States within 90 days.
On August 22, 2007, Shabayek married a United States citizen named Charlotte Loving. On September 28, 2007, he moved to open the removal proceedings, asking for reopening to allow him to adjust his status to that of a lawful permanent resident. With his motion to reopen, he filed his marriage certificate and a Form 1-130 Petition for Alien Relative. The Government opposed the motion, noting that Shabayek was not the beneficiary of an approved 1-130 Petition and that, in any event, Shabayek could not show that his marriage was bona fide.
The IJ denied the motion to reopen based on Shabayek’s “failure to meet the standards of Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), and Matter of Laureano, 19 I. & N. Dec. 1 (BIA 1983).” R. 22 (IJ’s order — the quoted language is the analysis in its entirety). Shabayek appealed to the BIA. The BIA dismissed the appeal. The BIA ruled that Shabayek had not made a prima facie showing that his marriage was bona fide. The BIA additionally noted that even if Shabayek had made such a showing, the denial “would have been justified” because the motion was untimely. The BIA also ruled that because Shabayek had remained in the country beyond the period of voluntary departure, he had become ineligible for adjustment of status.
Shabayek filed a petition for review. The Government filed a motion for summary affirmance. The Government argues that the BIA’s decision should be summarily affirmed because Shabayek failed to establish his eligibility for adjustment of status. The Government also contends that Shabayek’s failure to voluntarily depart bars him from being eligible for an adjustment of status under 8 U.S.C. § 1229e(d)(l)(B).
Although Shabayek did not file a response to the motion for summary affirmance, he filed a motion for a stay of removal. He notes that he is married to a United States citizen who is disabled and requires his assistance. He further notes that the 1-130 petition remains pending. The Government opposes the stay motion, arguing that Shabayek does not show a likelihood of success on the merits of his petition or that the equities otherwise weigh in favor of a stay.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review an order denying a motion to reopen under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The BIA’s discretionary decision will not be disturbed unless it is arbitrary, irrational, or contrary to law. See Guo, 386 F.3d at 562. Applying this standard, we conclude that there is no substantial issue on appeal. Accordingly, we will summarily deny Shabayek’s petition for review. See Third Circuit LAR 27.4; I.O.P. 10.6.
Shabayek premises his claim for reopening on his purported eligibility for adjustment of status. The BIA may grant a motion to reopen for adjustment of status based on a motion to reopen for adjustment of status in light of a marriage
“where the following factors are present: (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by In re Shaar, 21 I. & N. Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the [alien’s] marriage is bona fide; and (5) the Service either does not oppose the motion or *741bases its opposition solely on Matter of Arthur ”
Bhiski v. Ashcroft, 373 F.3d 363, 371 (3d Cir.2004) (quoting Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002)).1 Shabayek, who got married approximately two months after the voluntary departure order (to a possibly thrice-married woman who had filed 1-130 petitions for other husbands), did not present evidence to show that his marriage was bona fide. He only filed his marriage certificate and a Form 1-130 Petition for Alien Relative. Furthermore, as the BIA noted, the motion, filed beyond the 90 day deadline for a motion to reopen, was untimely. See 8 C.F.R. § 1003.23(b)(1).
For these reasons, we conclude that the BIA’s order was not arbitrary, irrational, or contrary to law, and that Shabayek presents no substantial issue on appeal.2 We grant the Government’s motion, and we will deny the petition for review. Shabayek’s motion for a stay of removal is also denied.
. The BIA has since ruled that motion to reopen to apply for adjustment of status based on a marriage entered into after removal proceedings are commenced may not be denied simply because the Government opposes it. See Matter of Lamus-Pava, 25 I. & N. Dec. 61 (BIA 2009).
. We conclude that it is unnecessary to reach the issue whether Shabayek’s failure to voluntarily depart bars him from being eligible for an adjustment of status under 8 U.S.C. § 1229c(d)(l)(B).
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OPINION
PER CURIAM.
Nathaniel Lawson, proceeding pro se, appeals the District Court’s orders dismissing his case and denying his motion for reconsideration, respectively. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s orders. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In October 2006, Lawson filed a counseled complaint against National Continental Insurance Company (“National Continental”) in New Jersey Superior Court, alleging that National Continental wrongfully terminated an insurance policy held by Nate’s Transportation, a bus company owned by Lawson.1 In September 2007, the Superior Court granted National Continental’s motion to dismiss the case.
In June 2008, Lawson filed a pro se complaint against National Continental in the District Court of New Jersey, re-alleging his breach of contract claim and raising claims under the First, Fourth, Eighth, and Fourteenth Amendments, as well as claims pursuant to alleging violations of 42 U.S.C. §§ 1881, 1855, 1982, 1986 and 1988. National Continental moved to dismiss Lawson’s complaint, and on January 26, 2009, the District Court granted the motion, dismissing the case with prejudice. The court concluded that (1) Lawson’s complaint failed to allege any facts to support his federal and constitutional claims; and (2) his breach of contract claim was precluded by the doctrine of res judicata. On February 24, 2009, the District Court denied Lawson’s motion for reconsideration.2 Lawson now appeals the District Court’s January 26 and February 24 orders to this Court.
II.
We first must examine whether we have jurisdiction to consider this appeal *743because the notice of appeal was not filed until April 23, 2009. A party in a civil case is required to file a notice of appeal within thirty days of entry of the judgment. Fed. R.App. P. 4(a)(1)(A). Generally, a judgment cannot be entered unless it is set out in a separate document. Fed.R.Civ.P. 58(c)(2)(A). A judgment is treated as a separate document if it: (1) is self contained and separate from the opinion, (2) notes the relief granted, and (3) omits (or at least substantially omits) the trial court’s reasons for disposing of the claims. In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir.2006). The District Court’s January 26, 2009 order, which contains three pages describing the reasons for the District Court’s dismissal, fails to satisfy the third criterion — omission of reasoning. As such, pursuant to Fed. R.App. P. 4(a)(7)(A)(ii), the January 26 order was not considered entered for 150 days. Because Lawson filed his notice of appeal eighty-seven days after the January 26 order, his appeal is timely.
III.
Having determined that the appeal is timely, we now turn to the merits of Lawson’s claim. Summary action is warranted when no substantial question is presented on appeal. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.
Lawson appeals from the order of the District Court dismissing his complaint under Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id.
We agree with the District Court that Lawson’s complaint fails to allege any facts to support his federal or constitutional claims. While Lawson alleges that National Insurance denied Nate’s Transportation insurance coverage and added a premium without reason, the complaint does not contain any facts that would allow one to reasonably infer that its actions violated federal or constitutional law. Lawson’s conclusory allegations are insufficient to plausibly demonstrate that National Insurance violated Lawson’s civil or constitutional rights. See Iqbal, 129 S.Ct. at 1949.
As for Lawson’s breach of contract claim, we agree with the District Court that this claim is barred by res judicata. Res judicata bars a second suit where “there has been (1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.1991). Here, all three requirements are met, as the New Jersey Superior Court entered a valid, final judgment on the merits in September 2007, and the parties and the cause of action in that case were identical to those in this case.
*744We have held that when a complaint is dismissed for failure to state a claim upon which relief may be granted, a plaintiff should be granted the opportunity to amend his complaint unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). Given that, as discussed above, Lawson previously litigated this breach of contract claim in New Jersey Superior Court and there are no facts to infer that National Insurance violated his federal or constitutional rights, we conclude that it would have been futile for the District Court to provide Lawson with leave to amend his complaint before granting the motion to dismiss.
In light of the above, we will summarily affirm the District Court’s orders dismissing the complaint and denying Lawson’s motion for reconsideration.
. In the complaint filed in District Court and the notice of appeal filed in this Court, Nate's Transportation was incorrectly pleaded as a plaintiff and an appellant. However, Nate’s Transportation, Inc. is a corporation and therefore cannot proceed as a pro se litigant. See Rowland v. California Men's Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). And, in addition, Lawson, as a non-attorney, may not represent the interests of a corporation in a federal court. See Osei-Afriyie v. Med. Coll of Pa., 937 F.2d 876, 883 (3d Cir.1991).
. After filing his original motion for reconsideration on January 28, Lawson filed addition*743al motions for reconsideration on February 13, February 20, March 4, and March 31. None of these motions were timely filed. See Fed. R.App. P. 58(e). The District Court noted in its February 24, 2009 order, that it considered both Lawson’s original motion for reconsideration and his February 13 motion.
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OPINION
PER CURIAM.
I.
Appellant Glenn Worley is the subject of an ongoing investigation by the Internal Revenue Service (“the Government”) into “the collection of income tax liabilities *745(Forms 1040) ... for the calendar years(s) ended: December 31, 2004, and December 31, 2005.” As part of the investigation, the Government issued an administrative summons pursuant to 26 U.S.C. § 7602 (“the IRS summons”)1 to compel Worley to “give testimony and to produce for examination books, papers, records,” etc. When Worley refused to comply with the IRS summons, the Government initiated proceedings pursuant to 26 U.S.C. § 7604(a).2
In May 2009, the District Court entered an order directing Worley to appear in court on June 18, 2009, to “show cause why an Order should not be entered enforcing the Internal Revenue Summons.” Worley then filed a motion for trial by jury, a motion to “quash this case” based on improper service of the IRS summons, and an answer with counterclaims. By order dated June 12, 2009, the District Court denied Worley’s motions and granted the Government’s motion to dismiss Worley’s counterclaims.
Worley appeared before the District Court on June 18, 2009. The District Court determined that Worley had not shown cause for why he should not produce the information requested by the Government, and issued an order that he comply with the IRS summons by giving testimony and producing books and reeords at a subsequent hearing.3 Worley appealed from this order, and we granted his application to proceed in forma pauper-is.
II.
The District Court exercised jurisdiction over the IRS summons enforcement proceedings pursuant to 26 U.S.C. §§ 7402(b) and 7604(a). On June 18, 2009, the District Court entered a final order enforcing the IRS summons. Worley filed a timely notice of appeal. Therefore, we have jurisdiction pursuant to 28 U.S.C. 1291. See Church of Scientology of Cal, 506 U.S. at 15, 113 S.Ct. 447 (“we have expressly held that IRS summons enforcement orders are subject to appellate review”) (emphasis in original).4
Having granted Worley leave to proceed in forma pauperis, we must dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) if it is frivolous, i.e., if it has no arguable basis in law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). We review the District Court’s determination that the factual prerequisites for enforcement of the IRS summons have been met for clear error, and any questions of law de novo. See United States v. Ins. Consultants of Knox, Inc., 187 F.3d 755, 759 (7th Cir. *7461999); see also United States v. Gippetti, 248 Fed.Appx. 882, 887 (3d Cir.2007).
III.
Before a district court can enforce an IRS summons, the Government must “show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner’s possession, and that the administrative steps required by the Code have been followed.” United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964); United States v. Rockwell Int’l, 897 F.2d 1255, 1261 (3d Cir.1990). If the Government makes this four-step prima facie showing, the taxpayer still has the right to “challenge the summons on any appropriate ground” at a subsequent show cause hearing. Rockwell, 897 F.2d at 1262 (quoting Powell, 379 U.S. at 58, 85 S.Ct. 248). An “ ‘appropriate ground’ for challenging the summons exists when the taxpayer disproves one of the four elements of the government’s Powell showing, or otherwise demonstrates that enforcement of the summons will result in an abuse of the court’s process.” Id.
As he did below, Worley argues that the District Court lacked jurisdiction to enforce the summons. Worley does not, however, take issue with any specific element of the Government’s Powell showing. Nor has he demonstrated that the District Court’s enforcement of the summons will somehow result in “an abuse of the court’s process.” And contrary to Worley’s allegations, the District Court has both subject matter jurisdiction over the IRS summons enforcement proceedings and personal jurisdiction over Worley. See 26 U.S.C. §§ 7603 and 7604(a); United States v. Gilleran, 992 F.2d 232, 233 (9th Cir.1993). Because many of the other allegations made by Worley are misplaced, we emphasize for his benefit that he is not on trial; § 7602 was designed to be a vehicle for information-gathering, not indictments. See United States v. Arthur Young & Co., 465 U.S. 805, 816, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984) (the purpose of the summons statute is not to accuse but to inquire).
Accordingly, because this appeal presents no arguable legal issue, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
. “[U]nder 26 U.S.C. § 7602, the Secretary [of the Treasury] is vested with the authority to issue summonses in order to fulfill the Secretary’s investigatory obligation.” Gartner v. United States, 259 Fed.Appx. 514, 514 (3d Cir.2008).
. Section 7604(a) ”confer[s] jurisdiction on the federal district courts to enforce a summons issued by the IRS.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 11 n. 4, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).
. On September 1, 2009, Worley submitted for the District Court's in camera review documents responsive to the IRS summons. The District Court then ordered that Worley “shall appear and testify before IRS Officer Diana Ramos at the IRS's York office ... by no later than September 30, 2009,” and that Worley "shall produce and deliver to Ms. Ramos, any other IRS officer acting on her behalf, all documents responsive to the IRS' December 8, 2008 summons, including but not limited to the documents produced by Defendant to this court for in camera review.” (Dist. Ct. Order, dkt # 55.)
. Worley does not appeal from the District Court’s June 12, 2009 order that denied his motion to quash the IRS summons, and therefore we need not consider whether our jurisdiction over this appeal also arises under 26 U.S.C. § 7609(h)(1).
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Charles Steele and Toni Meadows entered into an agreement of sale under which Meadows would purchase real property from Steele. Meadows terminated the agreement, then brought suit in the Montgomery County Court of Common Pleas on August 25, 2006, to recover her $10,000 escrow deposit. She also filed a lis pendens in the Montgomery County Sheriffs Office, identifying the property as subject to her claim. By early September, Steele had entered into an agreement with another buyer to sell the property. One day before the closing, on September 5, 2006, Steele filed a petition to strike the Us pendens. Soon thereafter, Steele and Meadows agreed to a consent order in which Meadows agreed to strike the Us pendens in exchange for Steele’s release of the escrow deposit to her. Steele now claims that Meadows used the Pennsylvania court system to interfere with his sale of the property and by doing so, to extort the deposit from him. He filed suit in federal district court alleging a violation of his civil rights under 42 U.S.C. § 1983 and several state-law claims.1
The District Court dismissed Steele’s lawsuit for lack of subject matter jurisdiction. It concluded Steele’s federal claim under 42 U.S.C. § 1983 was defective because it did not allege conduct by a person acting under color of state law. Accordingly, no federal question provided the basis for federal jurisdiction.2 Steele appeals, contending the § 1983 claim is valid. Specifically he claims the defendants were acting under color of state law by filing the Us pendens.3
An action under 42 U.S.C. § 1983 requires wrongdoers to have violated federal rights of the plaintiff and to have done so while acting under color of state law. Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995). This inquiry turns not on “whether the state was involved in some way in the relevant events, but whether the action taken can be fairly *756attributed to the state itself.” Id. For private parties to become state actors for purposes of § 1983, “the state must significantly contribute to the constitutional deprivation, e.g., authorizing its own officers to invoke the force of law in aid of the private persons’ request.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1266 (3d Cir.1994). Whether the state invokes its compulsive powers or merely acquiesces in private conduct is relevant to the analysis. Id. at 1266, 1267.
Appellant relies on Jordan v. Fox, Rothschild, O’Brien & Frankel. In that case, private creditors obtained a confessed judgment against a debtor in which the debtor had signed an instrument authorizing judgment against it. 20 F.3d at 1258, 1262. The creditors’ attorney filed documents in the office of the Prothonotary of the Philadelphia Court of Common Pleas, which had the effect under Pennsylvania law of entering the confessed judgment against the debtor. Id. at 1258. The creditors also executed the judgment, by filing a praecipe with the Prothonotary, who issued a writ of execution directing the sheriff to attach the debtor’s property, which the sheriff did by garnishing wages. Id. We considered whether the creditors and their attorneys were acting under col- or of state law by entering or executing the judgment. Id. at 1264-67. We concluded they were acting under color of state law by executing the judgment, garnishing wages,4 id. at 1266-67, but not by entering the judgment,5 id. at 1264-66.
We acknowledged that the entry of judgment against a party has eonsequences affecting his or her property: “For example, its entry imposes a hen on any real estate a debtor may own in the county in which it is entered, but this consequence seems to us analogous to the entry of a lien in the office of the Recorder of Deeds. It involves no immediate seizure or deprivation of property under force of law.” Id. at 1266 n. 17; see also id. at 1262-64 (describing the Pennsylvania confessed judgment procedure). Jordan accordingly does not stand for the proposition that a private party’s judicial filings affecting private property are necessarily under the color of state law. Rather, in Jordan, we identified a distinction between private conduct requesting the seizure of property by state actors without pre-deprivation notice or hearing, on the one hand, and conduct having other consequences for property, such as the imposition of judgment liens, on the other hand.
This distinction is relevant here because the filing of a lis pendens against the Steele property was not a seizure of property. As found by the Pennsylvania Supreme Court, it is more akin to the filing of a lien:
The effect of a lis pendens is not to establish actual liens upon the properties affected nor has it any application as between the parties to the action themselves; all that it does is to give notice to third persons that any interest they may acquire in the properties pending the litigation will be subject to the result of the action.
*757Kohl v. PNC Bank Nat’l Ass’n, 590 Pa. 151, 912 A.2d 287, 242 n. 6 (2006) (quoting Dice v. Bender, 383 Pa. 94, 117 A.2d 725, 726-27 (1955)). Although a dispute about property may affect the legal position of the property owner, the state’s public acknowledgment of the dispute does not necessarily invoke the state’s coercive power over that property as would a seizure of the property. See Jordan, 20 F.3d at 1266-67.
Under the facts of this case, Meadows’s filing of the lis pendens did not invoke the coercive power of the state in a way that significantly contributed to Steele’s deprivation. See id. at 1266. Steele cannot establish a violation of 42 U.S.C. § 1983 because his Complaint does not allege facts that would establish that defendants were acting under color of state law. Accordingly, there is no basis for federal jurisdiction, and we will affirm the judgment of the District Court.
. The Complaint's state-law claims were slander of title, wrongful use, abuse of process, breach of contract, tortious interference with a contractual relationship, negligence, fraud and fraud on the court. The Complaint includes a request for punitive damages.
. The District Court additionally concluded it lacked diversity jurisdiction under § 1332. Steele's appeal only challenges the lack of federal question jurisdiction.
.We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s order dismissing the Complaint. We exercise plenary review over the District Court’s determination of subject matter jurisdiction. Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir.2009).
. “[A] private individual who enlists the compulsive powers of the state to seize property by executing on a judgment without pre-deprivation notice or hearing acts under color of law and so may be held liable under section 1983 if his acts cause a state official to use the state's power of legal compulsion to deprive another of property.” Jordan, 20 F.3d at 1267.
. “[A] state procedure permitting private parties to file a complaint and confess judgment essentially involves acquiescence by the state, not compulsion. In such circumstances, private conduct is not attributable to the state.” Jordan, 20 F.3d at 1266 (internal quotation marks omitted).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472636/
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*758OPINION OF THE COURT
SCIRICA, Chief Judge.
In June 2006, plaintiff Robert Connolly was fired from his position with defendant Bottling Group, LLC d/b/a The Pepsi Bottling Group (“PBG”). He was 52 years old at the time. Plaintiff brought suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 — 634, alleging he was fired because of his age. The District Court granted summary judgment for defendant, and plaintiff appeals. We will affirm.
As we write primarily for the parties, we need not recount in full the factual and procedural history of this case, which is set forth by the court below. See Connolly v. Pepsi Bottling Group, L.L.C., Civ. A. No. 06-1462, 2008 WL 4412090 (W.D.Pa. Sept.22, 2008). Plaintiff began work with defendant in 1972. As of February 2004, he held the position of Key Account Manager. In this capacity, he was assigned “third-party operator” customer accounts to manage, including that of the University of Pittsburgh Medical Center (“UPMC”). On June 19, 2006, defendant terminated plaintiffs employment. Shortly thereafter, defendant chose Robert Haig, then 47 years old, to fill plaintiffs former position.
According to defendant, plaintiff was terminated because he violated defendant’s Code of Conduct in his management of the UPMC account — particularly, those provisions of the code pertaining to business integrity, conflicts of interest, and business gifts. In 2002, plaintiff and Bill O’Connor, director of corporate purchasing for UPMC at the time, were involved in renegotiating the contract between defendant and UPMC. As UPMC and defendant would later learn, plaintiff and O’Connor signed two different versions of this renegotiated contract on December 11, 2002, one of which was thereafter held by defendant and the other by UPMC; neither UPMC nor defendant had the other’s version on record. These two versions contained materially different terms — for instance, the version held by defendant contained a clause providing for $175,000 in yearly “Special Event Support” marketing funds that defendant would make available to UPMC, while the version held by UPMC did not.
UPMC became aware of this situation in May 2006, when plaintiff, during a meeting with Bob Cutone (the individual who had assumed responsibility for the contract at UPMC1), told Cutone that the version of the contract held by UPMC was incorrect and gave him the version held by defendant. Cutone informed plaintiff that UPMC had no record of this other version of the contract. Subsequently, Cutone’s supervisor notified defendant that UPMC had serious concerns regarding its relationship with defendant and that UPMC was investigating certain marketing fund expenditures made by defendant on UPMC’s behalf while O’Connor was still with UPMC — expenditures which plaintiff authorized and which, as noted above, were not provided for in UPMC’s version of the contract. These expenditures included the purchase of a crew boat for the high school rowing program of which O’Connor’s son had been a member, and of season tickets to the Pittsburgh Steelers. In June 2006, UPMC arranged a meeting with plaintiffs supervisor to discuss this situation and asked that plaintiff not attend. At this meeting, UPMC apprised defendant of the differences between the two versions of the contracts; plaintiff had not notified defendant of the existence of the different versions prior to this meeting. When subsequently asked by defendant to explain the existence of the two versions of the contract, plaintiff offered multiple incomplete and contradictory re*759sponses. One week after its meeting with UPMC, defendant terminated plaintiffs employment.
Plaintiff filed suit against defendant, claiming it fired him because of his age in violation of the ADEA Plaintiff pointed to the following evidence to substantiate his claim of discrimination: comments made over the course of his last two years of employment with defendant by two of his supervisors, Bill Dillon and Lisa Sarneso, who were both involved in the termination decision;2 a handwritten notation indicating plaintiffs birth date and age that was made on plaintiffs computer-generated personnel profile by Patrick Flynn, another individual involved in the termination decision, shortly before that decision;3 Dillon’s issuance of a “below target” performance evaluation to plaintiff in October 2005, the first that plaintiff had received in his time working for defendant, and plaintiffs consequent placement on a performance improvement plan; and the timing of the hiring of plaintiffs replacement. According to plaintiff, defendant’s reliance on its Code of Conduct in its termination decision was simply a pretext for its actual, discriminatory motivation.
Defendant filed a motion for summary judgment. The District Court, applying the McDonnell Douglas burden-shifting framework to analyze plaintiffs claim, found that plaintiff had made a prima facie showing of discrimination: namely, that plaintiff was a member of a class protected under the ADEA, was qualified, suffered an adverse employment action, and was replaced by someone sufficiently younger to raise an inference of discrimination. The court also found defendant had met its burden of producing a legitimate nondiscriminatory reason for its termination of plaintiff — his entry “into two materially different contracts with the same customer on the same day, giving rise to an appearance of impropriety, and his multiple, incomplete and contradictory explanations when questioned about the two contracts.” The court noted that “[n]ot only did this conduct arguably violate the conflicts of interest and business gifts and payments subsections of the conducting business with integrity section of defendant’s code of conduct, it also put into jeopardy defendant’s business relationship with a major account.” Lastly, the court determined plaintiff had failed to put forth evidence that, when viewed in the light most favorable to him, would permit a reasonable factfinder to conclude that defendant’s proffered reason was pretextual and that plaintiff had been unlawfully discriminated against. Accordingly, the court granted defendant’s motion for summary judgment. This timely appeal followed.4
*760The ADEA prohibits employers from discriminating against “any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). “[A] plaintiff bringing a disparate-treatment claim pursuant to the ANEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Fin. Servs., Inc., — U.S. -, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009).5
On appeal, plaintiff does not challenge the District Court’s finding that, under the McDonnell Douglas framework, defendant has met its burden of producing a legitimate nondiseriminatory reason for its decision to terminate him. Plaintiff claims, however, that he has put forth sufficient evidence to discredit defendant’s proffered reason as pretextual and to defeat defendant’s motion for summary judgment. We disagree. First, we do not believe plaintiff has “demonstrate^ such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’ ” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir.1997) (en banc) (quotation marks omitted) (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994)). As the District Court noted, “here there is substantial undisputed evidence of record that supports defendant’s proffered reason for plaintiffs termination,” namely, “1) [plaintiff] signed two different versions of the PBG/UPMC Contract on the same day, ... 2) he never told his supervisors about the two different versions until after UPMC brought the issue to PBG’s attention, 3) UPMC representatives were upset with Connolly, and 4) Connolly gave PBG representatives multiple, incomplete and contradictory answers to questions about why two different versions existed.” Plaintiff points to evidence, such as statements made by O’Con-nor in his 2007 deposition, that lends insight into the circumstances surrounding the two contracts, the marketing fund expenditures, and aspects of plaintiffs conduct with respect to them, but as the District Court found, there is no indication that any of this information was available to defendant when it made its termination decision. Plaintiff also claims defendant has changed its proffered reasons for his termination, thereby undermining their legitimacy, but we fail to see any such inconsistency. Nor do we agree with plaintiff that defendant has failed to demonstrate adequately how plaintiffs entry into two different contracts, his authorization of expenditures that were not provided for in UPMC’s version of the contract and that seemingly inured to O’Connor’s personal benefit, and his failure to bring this situation to defendant’s attention and provide a credible explanation for it, implicate defendant’s Code of Conduct, particularly in light of the information available to defendant at the time of the termination decision.
We also agree with the District Court that the evidence offered by plaintiff to support his claim of discrimination “laek[s] probative force in light of the undisputed evidence of record relating to the stated bases for the termination.” Plaintiff claims the District Court failed to accord the comments made by Dillon and Sarneso, and the age notation made by Flynn, *761sufficient weight. As the District Court recognized, Dillon and Sarneso’s comments do not all suggest potential age-related bias, and those that might were made months before defendant’s decision to terminate plaintiff and outside the context of that decisionmaking process. See Fuentes, 82 F.3d at 767 (“ ‘Stray remarks by nondecisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.’ ” (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.1992))). The age notation on plaintiffs personnel profile indicates that individuals involved in the termination decision were aware of plaintiffs age at the time of that decision. The notation does not, in itself, manifest discriminatory animus, though it may be relevant to such a showing when considered in light of other evidence. See, e.g., Armbruster v. Unisys Corp., 32 F.3d 768, 783 (3d Cir.1994). We do not believe, however, that the evidence presented in this case, considered as a whole, is sufficiently probative to save plaintiffs ADEA claim from summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” (citations omitted)).. That is, when we view all of the evidence in the light most favorable to plaintiff, we do not believe a reasonable factfinder could conclude that plaintiff, given his conduct with respect to the UPMC contract and given the information available to defendant at the time of its termination decision, would not have been terminated but for his age. See Gross, 129 S.Ct. at 2352.6 Aceordingly, we will affirm the judgment of the District Court.
. UPMC terminated O’Connor’s employment in October 2005.
.According to plaintiff, Dillon (1) called plaintiff "the old man in the group" in March 2005 during their first meeting, (2) said to plaintiff in November or December 2005, "Listen, old man, I know you're lying to me,” and (3) called plaintiff a “legacy liability” and said that he "could hire two or three people for what [plaintiff] made” during a meeting on February 3, 2006; and Sarneso (1) told plaintiff during a meeting sometime in 2005 that "the job has passed [you] by” and that "younger key account managers can work rings around you,” and (2) told plaintiff during a meeting on June 14, 2005 that he "did not fit the mold for a trainer.”
. According to Flynn, the notation was made because plaintiff's age was relevant to the severance package that would be offered to plaintiff; plaintiff disputes this explanation, contending knowledge of plaintiff's exact age was not necessary to defendant's severance-package assessment.
. The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of summary judgment, and we review the facts in the light most favorable to the non-movant, plaintiff in this case. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir.2009). "The judgment sought should be rendered if the pleadings, *760the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that [defendant is] entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
. "An act or omission is not regarded as a cause of an event if the particular event would have occurred without it.” Gross, 129 S.Ct. at 2350 (quotation marks and citation omitted).
. In light of this determination, we need not reach defendant's contention that the District Court erred in concluding plaintiff's replacement was sufficiently younger than plaintiff to raise an inference of discrimination at the prima facie stage of the McDonnell Douglas framework.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472640/
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Anton Suharso and his wife, Yunita Wulansari, petition for review of an order of the Board of Immigration Appeals (“BIA”) denying their application for asylum and withholding of removal. The facts in this case reflect a familiar pattern: Christian Indonesians of Chinese descent alleging persecution by Muslim Indonesians. The Immigration Judge (“IJ”) concluded, and the BIA agreed, that the intimidation and harassment alleged by petitioners — including an episode in which a gang of Muslims assaulted Suharso with a knife — were not sufficiently severe to constitute persecution. Because we agree that petitioners neither suffered past persecution nor possess a well-founded fear of future persecution on account of their religion or ethnicity, we will deny the petition for review.
Suharso and his wife, Wulansari, are natives and citizens of Indonesia, and are ethnically Chinese Catholics. At the hearing on their application for asylum and withholding of removal, Suharso testified that he suffered verbal harassment and was frequently “stopped or attacked” by Indonesian Muslims, and that, on one occasion in March 2002, a gang of Muslims confronted him on his walk to church, seized and stomped his prayer book, and cut him with a knife — incidents that failed to deter Suharso from attending church. A. 111.
Suharso’s experience reflected a wider pattern of aggression toward Chinese Christians by elements of the Muslim community between 2000 and 2002. During that period, Suharso testified that radical Muslims regularly targeted churches: bomb attacks and bomb threats against churches “happened] everywhere.” A. 116. An expert retained by petitioners, Dr. Jeffrey Winters, corroborated Suharso’s testimony, indicating that on Christmas Eve in 2000, unknown terrorists *767bombed or attempted to bomb 84 Christian churches in 10 cities. Episodic rioting, involving attacks on Chinese homes and businesses, continued thereafter in different parts of the country. These attacks, Winters stressed, reflected longstanding animus toward Chinese Christians, perceived as unwelcome outsiders. Winters also described an array of discriminatory laws enforced against ethnically Chinese Indonesians.
Government efforts to stem religious and ethnic violence have had mixed results. Winters opined that the Indonesian government, which has a “severely degraded” legal and security apparatus, has had difficulty controlling fanatical fringes, which continue to terrorize Chinese Christians. A. 221. Suharso testified that his church, for example, was forced to close after the government was unable to protect congregants against Muslim extremists. A second expert retained by petitioners, Jana Mason, noted that crimes against Chinese Christians are rarely prosecuted, and that a “significant risk” of ethnic violence has remained since 1998 — the last wave of nationwide looting and rioting-— reflecting the government’s inability to stem the “growing militancy of Islam.” A. 233-34.
One month after his assault at knife-point, Suharso and his wife celebrated their honeymoon in the United States. Suharso explained that, “at first it was our intention [to come to the United States] for honeymooning (sic),” but, after touring the country, “we felt the situation in here, we do not want to return.” A. 126. After immigration officials discovered that petitioners overstayed their visas, removal proceedings were initiated. Petitioners conceded their removability but sought asylum and withholding of removal.1 The IJ determined, and the BIA agreed, that Suharso offered credible testimony that he suffered persistent harassment and threats on the basis of his religion and ethnicity, but that the indignities endured, including Suharso’s assault in March 2002, fell short of “persecution” under the applicable law.2 Accordingly, the BIA affirmed the IJ’s decision that petitioners were ineligible for asylum and withholding of removal.3
On appeal, Suharso makes two arguments — that his due process rights were *768violated when the BIA failed to make an individualized determination of his eligibility for asylum and withholding of removal;4 and that the BIA’s conclusion that he lacked a well-founded fear of persecution was unsupported by substantial evidence.
We easily dispose of Suharso’s first argument, finding “sufficient indicia” that the BIA gave “particularized consideration” to his arguments and evidence. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.2001). The BIA considered — and rejected — Suharso’s twin contentions — that the harassment that he endured rose to the level of persecution, and that the IJ failed to consider Winters and Mason’s affidavits. In a succinct analysis, the BIA concluded that the fact that Suharso’s family continued to reside in Indonesia undermined his claim of persecution, that the IJ adequately addressed Winters’ affidavit, and that the IJ’s alleged failure to consider Mason’s affidavit was not prejudicial. In Abdulai v. Ashcroft, we approved a similar analysis by the BIA and rejected petitioner’s due process claim. Id. We thus dismiss Suharso’s constitutional challenge as meritless.
Suharso’s second argument — that the BIA erroneously concluded that he had not suffered past persecution — also fails.5 Although the BIA credited Suharso’s accounts of extremist attacks on Christian churches, his assault in March 2002, and persistent harassment on account of his religion and ethnicity, the BIA properly concluded that these isolated criminal acts were not sufficiently egregious to constitute “persecution” — a term that we have narrowly defined as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993)). We believe that our recent decision in Lie v. Ashcroft, addressing similar facts, forecloses petitioners’ argument. Id.
In Lie, we considered whether religiously and ethnically motivated violence more severe than that directed at Suharso constituted persecution. Id. There, the peti*769tioner, a Chinese Christian, asserted a well-founded fear of persecution on account of her religion and ethnicity if removed to Indonesia. Petitioner had left Indonesia in the wake of a nationwide wave of ethnic violence that shook the country in 1998. During this tumultuous period, which witnessed serious and widespread attacks on Chinese-owned businesses and homes, thousands of Chinese were killed, raped, or beaten, and their homes, looted and torched. Petitioner was an unfortunate victim of this violence. In 1997, at the very outset of the turmoil, Muslim Indonesians entered her husband’s store and, shouting “Chinese pig,” robbed petitioner’s husband at knife-point. Several months later, two intruders knocked down the door of petitioner’s home, demanding money. Calling petitioner a “Chinese pig” and threatening to burn down her house, the assailants seized her money and jewelry and, when petitioner attempted to defend herself, slashed her left forearm with a knife; the resulting laceration required several stitches. Two years later, in March 2000, petitioner left Indonesia. The BIA concluded, and we agreed, that the acts of robbery and violence directed at petitioner, “while unfortunate and troubling,” fell short of “persecution.” Id. at 586. Adopting the holdings of two other courts of appeals, we stated, “We agree with the Ninth and Tenth Circuits that Lie’s account of two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution.” Id. at 536.
Lie strongly supports our conclusion that the violence directed at Suharso does not rise to the level of persecution. Lie makes clear that verbal harassment, and isolated criminal acts resulting in minor injuries or property damage, do not rise to the level of persecution. Further, courts have distinguished legal discrimination from persecution.6 The most significant act of retaliation identified by Suharso — an altercation with Muslim gang members in which his forearm was cut and his prayer book destroyed — was less severe than the repeated acts of violence visited upon Lie and her husband, whose homes and businesses were ransacked, who were twice robbed, beaten, and knifed, and who were told that their home would be torched. And, although some evidence suggests a resurgence of religious violence — specifically, bombings, or threats to bomb, Christian churches — Winters explained that 1998 represented an even more dangerous period for Chinese Christians.7 Because we determined in Lie that the conditions in Indonesia in 1998 did not rise to the level of persecution, the BIA properly found that the smaller, ensuing wave of religious violence did not entitle Suharso to relief.
We also agree with the BIA that Suharso did not demonstrate a well-founded fear of future persecution — a requirement satisfied by proof that the petitioner was individually singled out for persecution, or that a pattern or practice of persecution against similarly situated individuals exists.8 Analyzing the former avenue— whether an individualized risk of persecution exists — the BIA initially credited Su*770harso’s testimony that, after his arrival in the United States, his family received death threats, that his church was demolished by Muslim radicals, and that his home was periodically peppered with rocks. The BIA emphasized, however, that Suharso’s family, who was never harmed, stayed in Indonesia.9 The BIA also observed that Suharso’s prior assault was a “random act of violence by street hoodlums” — not an attack directed at him in particular. A. 69. On this record, the BIA concluded — quite appropriately — that Suharso failed to establish an individualized risk of persecution if he returned to Indonesia. See Lie, 396 F.3d at 537 (requiring proof that asylum applicant had been “singled out” for persecution). Because Suharso has failed to adduce evidence on appeal “so compelling” that no reasonable factfinder could fail to find that he faced a particularized risk of persecution, we will not disturb the BIA’s determination of this issue. Id. at 534 n. 3.
Alternatively, Suharso seeks relief based on a pattern or practice of persecution against Chinese Christians. In rejecting petitioner’s argument, the BIA discounted Winters’ affidavit, which identified a risk of renewed violence toward Chinese Christians, underscored the government’s inability to control Muslim radicals, and noted the inadequate prosecution of crimes perpetrated against Chinese Christians. The BIA credited, instead, a State Department report indicating a general reduction in ethnic and religious violence. The BIA also found that the Indonesian government had neither perpetrated nor acquiesced to violence against Chinese Christians, but rather strove to reduce ethnic tensions— efforts that Suharso himself acknowledged at the removal hearing. Mason noted, moreover, that the Indonesian government had begun to repeal discriminatory laws targeting ethnically Chinese Indonesians.
On appeal, Suharso asserts, however, that ethnic and religious violence escalated, rather than subsided, after 2002. Suharso cites the 2005 International Religious Freedom Report, indicating a doubling in the number of churches attacked over the prior year. Suharso also stresses that a recent State Department report found continued legal discrimination against Chinese Christians, who encounter numerous roadblocks in registering marriages, divorces, and births. Suharso maintains that the BIA erred in giving short-shrift to these reports and to Mason and Winters’ affidavits, which suggested a continued risk of ethnic and religious violence.
Notwithstanding Mason and Winters’s affidavits, we find substantial evidence to support the BIA’s conclusion that there is no widespread pattern or practice of persecution of Chinese Christians, and that the Indonesian government has not condoned or acquiesced to attacks by private actors. To the contrary, the State Department Country Report noted a significant drop in violence towards Chinese Christians and improved respect for religious freedom. Although the Report suggested that the government occasionally tolerated hostilities toward Chinese Christians, it also noted that the government made “significant efforts to reduce inter-religious violence.” A. 177.10 The State *771Department Country Report on Human Rights Practices of 2005 found, similarly, that “Police made stronger efforts to investigate, arrest, and prosecute” acts of religious violence.11 A. 186. Although the report noted that police, which lacked adequate resources, often failed to stop closures of churches, most closures were temporary. Suharso also testified that the government attempted in good-faith, albeit unsuccessfully, to prevent the closure of his local church and to protect congregants from extremist violence at other houses of worship. Hence, as we recently observed in Wong v. Att’y Gen., “[E]ach of the other circuits to address the issue has declined to find a pattern or practice of persecution of Christian Indonesians of Chinese descent.” 589 F.3d 225, 234 (3d Cir.2008) (internal citations omitted). On this record, we cannot say that the evidence is “so compelling that no reasonable factfinder could fail to find the alien eligible for asylum or withholding of removal.” Lie, 396 F.3d at 534 n. 3.
Our conclusion that Suharso does not face a well-founded risk of future persecution is buttressed by our opinion in Lie. There, as discussed, we considered whether the petitioner faced a risk of future persecution in the wake of a wave of ethnic and religious violence — a pandemic that, Winters acknowledged, was more lethal and more widespread than the more recent period of turmoil. Despite the virulence of the 1998 attacks, which we noted produced “significant violence and rioting against individuals of Chinese origin throughout Indonesia,” culminating in the deaths of over one thousand people, id. at 533, we agreed with the BIA that the petitioner failed to establish a pattern or practice of persecution of Chinese Christians. Because the climate has improved — not worsened — -since 1998, we agree with the BIA that Suharso has failed to demonstrate a risk of future persecution on account of his religion or ethnicity.12 Accordingly, we conclude that the BIA properly denied petitioners’ application for asylum and withholding of removal.
For the foregoing reasons, we will deny the petition for review.
. Specifically, Suharso applied for asylum and withholding of removal; Wulansari is a derivative applicant for asylum and also seeks withholding of removal.
. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See Briseno-Flores v. Att'y Gen., 492 F.3d 226, 228 (3d Cir.2007). Where the BIA substantially adopts the findings of the IJ, as the BIA did here, we review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
. Under INA § 208(b), the Attorney General has the discretion to grant asylum to “refugees.” 8 U.S.C. § 1158(b). Section 101(a)(42)(A) of the INA defines a "refugee” as a person unable to return to her country of “nationality ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....” 8 U.S.C. § 1101(a)(42)(A). The alien bears the burden of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(a). If past persecution is established, then the asylum applicant is presumed to have a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1). If the alien cannot show past persecution, he may still establish a well-founded fear of future persecution by demonstrating a subjective fear of persecution, and that a reasonable person in the alien’s circumstances would fear persecution if returned to the country in question. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003).
To establish entitlement to withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a "clear probability” of persecution through the presentation of evidence that it is more likely than not that he would be subject *768to persecution if deported. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003). This is a more demanding standard than the standard for asylum, and, therefore, an alien who fails to establish his eligibility for asylum "necessarily fails to meet the standard of withholding of removal under INA § 241(b)(3).” Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003).
. Although the federal Constitution does not guarantee a right to asylum, aliens facing removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir.1990). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quotation marks and citation omitted). In removal proceedings, due process has three elements. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.2001). An alien: "(1) is entitled to factfinding based on a record produced before the decisionmaker and disclosed to him or her; (2) must be allowed to make arguments on his or her own behalf; and (3) has the right to an individualized determination of his [or her] interests.” Id. (internal citations omitted). Petitioners focus solely on the third element, urging that the BIA did not render an individualized determination of their applications for asylum and withholding of removal.
. We must uphold the BIA's factual findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 480, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We will conclude substantial evidence is lacking only where the evidence “was so compelling that no reasonable factfinder could fail to find the alien eligible for asylum or withholding of removal.” Id. at 483-84, 112 S.Ct. 812; see Lie v. Ashcroft, 396 F.3d 530, 534 n. 3 (3d Cir.2005).
. Sombah v. Mukasey, 529 F.3d 49, 51 (1st Cir.2008) (“Discrimination in Indonesia does not, without more, qualify a Christina Indonesian national for asylum.”); Pulisir v. Mukasey, 524 F.3d 302, 308-309 (1st Cir.2008); Kho v. Keisler, 505 F.3d 50, 58 (1st Cir.2007); Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir.2006).
. Winters observed, “[T]here has been no massive upsurge of violence against the ethnic Chinese on the scale seen in 1998." A. 221.
. Sukwanputra v. Gonzales, 434 F.3d 627, 637 (3d Cir.2006); see 8 C.F.R. § 208.13(b)(2)(iii)(A).
. Lie, 396 F.3d at 537 (noting that "when family members remain in petitioner's native country without meeting harm,” the "reasonableness of a petitioner's well-founded fear of future persecution is diminished”); see Krasnopivtsev v. Ashcroft, 382 F.3d 832, 839 (8th Cir.2004); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001).
. See Kayembe v. Ashcroft, 334 F.3d 231, 236 (3d Cir.2003) (noting that just because "the State Department report cuts both ways ... does not mean that it does not constitute substantial evidence”).
. We have previously observed that the State Department Country Report of 2005 reflects improved treatment of Chinese Christians in Indonesia and a reduction in ethnic tensions. See Wong v. Att’y Gen., 539 F.3d 225, 234 (3d Cir.2008) (noting that State Department Country Report of 2005 documents improved treatment of Chinese Christians in Indonesia); Budiono v. Mukasey, 548 F.3d 44, 46 (1st Cir.2008) (finding that the State Department Country Report of 2005, indicating a decrease in discrimination and harassment of ethnic Chinese, undercuts petitioner's assertion of a pattern and practice of discrimination against Chinese Christians in Indonesia).
. See Yunaidi v. Att’y Gen., 324 Fed.Appx. 762, 764-65 (11th Cir.2009) (unpublished) (rejecting petitioner’s contention that the 1998 wave of ethnic violence, which resulted in destruction of petitioner’s church and family business and forced the petitioner to flee, rose to the level of persecution).
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OPINION
WEIS, Circuit Judge.
Defendant pleaded guilty to possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a). In determining the applicable sentencing guideline, the District Court found that defendant had distributed cocaine base in excess of 4.5 kilograms. Although the pre-sentence investigation report resulted in a Guideline range of 262 to 327 months’ incarceration, that range was lowered to 240 months, the statutory maximum. Responding to the government’s motion to a downward departure and in consideration of the defendant’s ongoing and substantial cooperation, the Court imposed a sentence of 139 months imprisonment and a three-year period of supervised release.
Defendant contends that, in finding the amount of cocaine involved, the Court erred by using evidence that he supplied in a proffer. The government asserts that it had independent sources for determining the amount of illegal drugs, including information provided by confidential informants before the defendant’s arrest, as well as statements defendant made to the police before entering into the plea agreement. We have carefully reviewed the sentencing proceedings, including the transcript of the hearing, and conclude that the District Court did not err in finding that the quantity of illegal drugs was calculated based on evidence independent of the proffer and was, therefore, properly used in determining the sentence. See United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc) (“this Court ... review[s] factual findings relevant to the Guidelines for clear error and ... exercisefsj plenary review over a district court’s interpretation of the Guidelines”); see also U.S.S.G. § lB1.8(b)(l) (“The provisions of subsection (a) [stating that self-*773incriminating information provided pursuant to plea agreement cannot be used in determining guideline range] shall not be applied to restrict the use of information [ ] known to the government prior to entering into the cooperation agreement”) (emphasis added).
We also conclude that the District Court gave “meaningful consideration” to the 18 U.S.C. § 3553 factors and applied them reasonably to the circumstances of this case. See United States v. Lessner, 498 F.3d 185, 203-04 (3d Cir.2007) (holding that a sentence is procedurally reasonable where the district court demonstrates “meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a)” and substantively reasonable where it applies those factors “reasonably to the circumstances of the case”).
Accordingly, we will affirm the Judgment of the District Court.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Joseph M. Lutz and Cindy Lutz (the “Lutzes”) appeal from an order of the District Court granting a motion to dismiss filed by Philips Electric North America (“Philips”) and Metlife for failure to comply with the applicable statute of limitations. We will affirm.
I.
We write exclusively for the parties who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Joseph M. Lutz began his employment with Philips on August 2, 2001.1 Shortly thereafter, Mr. Lutz was hospitalized and underwent back surgery. After exhausting his twenty-six weeks of short-term disability benefits, Mr. Lutz applied and was approved for long-term disability benefits under a Long Term Disability Plan offered by Phillips and administered by Metlife. The terms and methodology of benefit calculation were included in Mr. Lutz’s notification of benefits. According to the Lutzes’ complaint, Mr. Lutz noticed an “incorrect calculation of his long term disability benefits” and accordingly complained to Philips and Metlife on “repeated occasions beginning [on] August 23, 2002.” (App.16). The Lutzes filed suit in state court on August 6, 2007, alleging negligence and breach of contract arising out of the underpayment of benefits under the disability plan. Philips and Metlife removed the case to the District Court on the basis of ERISA preemption of the state law claims. The District Court entered an order dismissing the suit with prejudice on August 20, 2008, 2008 WL 3914840, for failure to comply with the applicable statute of limitations. This timely appeal followed.
II.
We exercise plenary review of the District Court’s grant of a motion to dismiss. Maio v. Aetna, Inc., 221 F.3d 472, 481 (3d Cir.2000). The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over the District Court’s order under 28 U.S.C. § 1291.
III.
The Lutzes argue that the District Court erred in granting the defendants’ motion to dismiss because it applied the incorrect statute of limitations to their claim, which both parties agree is governed by ERISA. The Lutzes also argue *776that the District Court erred in denying their motion for leave to amend their complaint to include a claim for breach of fiduciary duty.
A.
The Lutzes originally brought claims against Phillips and Metlife for negligence and breach of contract stemming from underpayment of benefits from the Long Term Disability Plan offered by Phillips and administered by Metlife. As the District Court held, these state law claims are preempted by ERISA. 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Therefore, the statute of limitations applicable to the Lutzes’ claims is governed by ERISA.
ERISA grants beneficiaries of benefit plans the ability to recover benefits due, enforce rights under the plan, or clarify a right to future plan benefits under 29 U.S.C. § 1132(a)(1)(B). Section 1132 does not contain its own statute of limitations, so this Court has previously looked to the statute of limitations for the most analogous state law claim in order to determine the appropriate limitations period. See, e.g., Gluck v. Unisys Corp., 960 F.2d 1168, 1179 (3d Cir.1992). “The statutory limitation most applicable to a claim for benefits under Section 1132(a)(1)(B) is a breach of contract claim. In Pennsylvania, a breach of contract claim has a statute of limitations of four years.” Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 305-06 (3d Cir.2008) (citing 42 Pa. Cons.Stat.Ann. § 5525(a)(8)). Thus, the relevant statute of limitations in this case is four years.
The Lutzes argue that the statute of limitations did not begin to run on their underpayment claims until the date “in-house counsel for MetLife acknowledged the inaccurate benefit calculation.” (Lutz Bl. Br. at 14). This argument is contrary to law.
The “statute of limitations begins to run when a plaintiff discovers or should have discovered the injury that forms the basis of his claim.” Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 520 (3d Cir.2007). We also held in Miller that a cause of action for unpaid benefits accrues when there has been “a repudiation of the benefits by the fiduciary which was clear and made known [to] the beneficiary.” Id. at 520-21. Underpayment of a benefit constitutes a repudiation of full benefits and triggers the statute of limitations. Id. at 521 (“[A]n underpayment can qualify as a repudiation because a plan’s determination that a beneficiary receive less than his full entitlement is effectively a partial denial of benefits. Like a denial, an underpayment is adverse to the beneficiary and therefore repudiates his rights under a plan.”).
Under our reasoning in Miller, the Lutzes’ ERISA claim accrued on August 23, 2002, when the Lutzes began their “repeated” complaints about the incorrect calculation of benefits. Though the Lutzes argue that the statute of limitations does not run until a party has or should have discovered the injury, there can be no question that the Lutzes had “discovered the injury that forms the basis of [their] claim” as of the date they first brought that injury to the attention of Philips and Metlife.2 Id. at 520. The Lutzes’ four-year statute of limitations for bringing suit for underpayment of disability benefits thus expired on August 23, 2006, nearly a year *777prior to the filing of this suit on August 6, 2007.
The Lutzes further propose that, even if a four-year statute of limitations applies to their claims, principles of equitable estoppel should permit them to proceed in the face of that limitation. The Lutzes contend that Philips and Metlife should be estopped from asserting the statute of limitations as a defense because the Lutzes relied on alleged misrepresentations made by Philips and Metlife concerning whether the benefits were correctly calculated. Purportedly as a result of these misrepresentations, the Lutzes did not file suit within the applicable statute of limitations.
A plaintiff seeking equitable relief from a statute of limitations must establish (1) a material misrepresentation or fraudulent concealment, (2) reasonable and detrimental reliance upon the misrepresentation or concealment, and (3) extraordinary circumstances. Pell v. DuPont, 539 F.3d 292, 300 (3d Cir.2008). When equitable estoppel is established, “the statute of limitations is tolled until the plaintiff knew or using reasonable diligence should have known of the claim.” Bohus v. Beloff, 950 F.2d 919, 925-26 (3d Cir.1991).
Without engaging whether Philips or Metlife made any material misrepresentations, the Lutzes’ equitable estoppel argument must fail. A defendant is only estopped from asserting a statute of limitations defense when its conduct “would divert or mislead the plaintiff from discovering the injury.” Id. at 925. As we have already observed, the Lutzes discovered their injury as of August 23, 2002. A successful equitable estoppel argument cannot toll the statute of limitations beyond the date of a plaintiffs actual knowledge of the injury giving rise to his claim. Id. at 925-26.
Because the Lutzes’ suit was not filed within the four-year period set by the statute of limitations, the District Court correctly held that it was barred by the four-year statute of limitations.
B.
Finally, the Lutzes argue the District Court erred in refusing to grant them leave to amend their complaint to include a claim for breach of fiduciary duty under 29 U.S.C. § 1132(a)(1)(B). Although leave to amend a complaint under Rule 15(a) should be liberally granted, we have held that such leave should not be permitted where an amendment to the complaint would be futile. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1278 (3d Cir.1994).
The ERISA provision authorizing actions to recover for “a fiduciary’s breach of any responsibility, duty, or obligation” contains an explicit statute of limitations. 29 U.S.C. § 1113. Such actions must be filed within “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation. ...” Id. The Lutzes claim that they were injured by the alleged breach of fiduciary duty in the form of underpayment of benefits. As discussed above, the Lutzes had actual knowledge of this alleged breach as of August 23, 2002, when they first complained of the underpayment. The three-year statute of limitations for filing the breach of fiduciary duty action thus expired on August 23, 2005, nearly two years before this action was filed on August 6, 2007. Therefore, the District Court correctly held that an amendment to the complaint alleging breach of fiduciary duty would have been futile.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. Mr. Lutz was initially hired as an employee of Agilent Technologies, which was subsequently acquired by Philips. Philips acknowledges in its brief that, for purposes of this appeal, Mr. Lutz's employment with Philips dates back to his initial employment with Agilent. (Philips Br. at 4-5).
. The Lutzes also suggest that the question of when the injury was discovered is a question of fact that must be resolved by a jury. (Lutz Bl. Br. at 14). Because the Lutzes' own corn-plaint established that they knew of their injury more than four years before they filed suit, the District Court appropriately found no factual dispute left for jury determination.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Kaleel Wilson appeals from the District Court’s conviction by a jury and sentence, arguing that the District Court (1) abused its discretion in refusing to give an accomplice witness jury instruction requested by the defendant and (2) committed plain error in imposing a five-year mandatory minimum term of imprisonment under 18 U.S.C. § 924(c), to run consecutively with a ten-year mandatory minimum term of *779imprisonment under 21 U.S.C. § 841(b)(1)(B). We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Kaleel Wilson was stopped by Philadelphia Police while speeding on the night of July 5, 2007. Officers Jared Netzer and Ryan Murphy observed three men in the van: Wilson in the driver’s seat, Baba Tunkara in the front passenger seat, and co-defendant Nafice Fields in the backseat. After seeing a fully loaded nine-millimeter semi-automatic handgun under the seat near Fields, Officer Murphy ordered him out of the van and placed him under arrest. Officer Murphy ordered both Wilson and Tunkara out of the vehicle, and Officer Murphy subsequently found a loaded .857 magnum handgun in Tunkara’s left front pocket. Tunkara told police that just before the police stopped the van, Wilson demanded that Tunkara hold the gun. Officer Netzer searched Wilson and found $1,388 in Wilson’s right front pocket. Police then searched the van and found 16.4 grams of crack cocaine in 115 small baggies in the roof liner above the driver’s sun visor.
Police arrested and charged Wilson, Fields, and Tunkara with state drug and weapons offenses. Subsequently, a federal grand jury indicted Wilson and charged him with possession with intent to distribute five or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The same federal indictment also charged Fields with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The federal indictment did not charge Tunkara.
At trial, Tunkara testified consistent with his earlier statement to police that Wilson had demanded that Tunkara hold the gun. At the time of his testimony, Tunkara still faced state drug and weapons charges stemming from the incident and also had an application pending for United States citizenship. Wilson explored these points extensively on cross-examination. Two months after his testimony against Wilson, Tunkara pled guilty to a state count of possession of an unlicensed firearm and received a sentence of five-years probation pursuant to a negotiated plea. At the plea hearing, the United States informed the state court judge of Tunkara’s cooperation with federal authorities.
At the District Court’s charging conference, Wilson did not ask the District Court to give an accomplice witness instruction and never provided a written request for the instruction. Rather, Wilson’s attorney called the Judge’s chambers the morning after the charging conference and requested an accomplice witness instruction. The District Court refused to give the instruction, citing the lack of a written proposed instruction, the fact that Tunkara was not charged federally, and stating that Wilson could challenge Tunkara’s credibility before the jury.
Following conviction on all counts, the District Court sentenced Wilson to a mandatory minimum term of imprisonment of ten-years for possession of cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and a consecutive mandatory minimum term of imprisonment of five-years for carrying a firearm in relation to the drug trafficking crime, in violation of 18 U.S.C. § 924(c).
Wilson filed a timely appeal challenging his conviction on the grounds that the Dis*780trict Court abused its discretion in failing to give the accomplice witness instruction and challenging his sentence on the grounds that the District Court committed plain error in imposing consecutive mandatory minimum terms of imprisonment under 18 U.S.C. § 924(c) and 21 U.S.C. § 841(b)(1)(B).
II.
The District Court properly exercised jurisdiction over this matter pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction based upon the timely filing of a notice of appeal from the July 16, 2008 order of judgment in the criminal case under 28 U.S.C. § 1291. We review the District Court’s refusal to give an accomplice witness instruction under an abuse of discretion standard. United States v. Leahy, 445 F.3d 634, 642 (3d Cir.2006). As Wilson did not object to the imposition of consecutive mandatory minimum sentences at the sentencing hearing before the District Court, we review the sentence for plain error. United States v. Couch, 291 F.3d 251, 252 (3d Cir.2002).
III.
Wilson first argues that the District Court abused its discretion in refusing to give the accomplice witness instruction requested with regard to the testimony of Baba Tunkara.
A District Court’s refusal to give an instruction will be reversed “only when the requested instruction was correct, not substantially covered by the instructions given, and ivas so consequential that the refusal to give the instruction was prejudicial to the defendant.” Leaky, 445 F.3d at 651.
We considered the use of accomplice witness instructions in United States v. Isaac and wrote:
“We recognize that a witness who has been given a reward for cooperation has also been given an incentive to shade the truth or to lie. It may well be the better practice to give an instruction if requested. However, such an instruction is not required, especially when, as here, it has been made clear to the jury that it is permitted to disbelieve testimony to the extent it finds that the testimony was driven more by a self-serving desire for leniency than a sense of duty to tell the truth. We have repeatedly approved the practice of counseling jurors to view the testimony of accomplices and immunized witnesses with skepticism and caution, particularly when it is uncorroborated and material to establishing the defendant’s guilt.”
134 F.3d 199, 204 (3d Cir.1998).
Isaac establishes that providing an accomplice witness instruction is not mandatory; rather the decision to give the instruction is left to the discretion of the district court. Other Courts of Appeals concur that there is “no absolute and mandatory duty to instruct a jury to consider even the testimony of an un corroborated accomplice with caution.” United States v. Rockelman, 49 F.3d 418, 423 (8th Cir.1995) (internal citation omitted).
Here, the District Court largely covered the substance of the accomplice witness instruction in its general charge to the jury. The District Court instructed the jury to “carefully scrutinize all the testimony given, [and] the circumstances under which each witness has testified.... ” (App.217) The Court also instructed jurors to consider each witness’s “motive to falsify.” Id. The Court did not, however, instruct the jury to perform a more thorough examination of Tunkara’s motivations for testifying because Tunkara was an accomplice. The jurors, nonetheless, were properly informed of their duty to scrutinize the credibility of all witnesses and evidence.
At trial, Wilson’s attorney had the opportunity to cross-examine Tunkara and *781demonstrate to the jury any potential motivation the witness had to falsify his testimony. Wilson’s attorney did indeed ask Tunkara about the impact that a criminal conviction would have on his pending application for United States citizenship, and during closing argument urged the jury to evaluate Tunkara’s credibility and consider whether his motive to testify was to avoid a firearm possession charge.1
The District Court, therefore, did not abuse its discretion in this case by refusing to give the accomplice witness instruction.
IV.
Wilson next argues that the District Court committed plain error by sentencing him to consecutive mandatory mínimums under both 18 U.S.C. § 924(c) and 21 U.S.C. § 841(b)(1)(B). 18 U.S.C. § 924(c)(1)(A) provides:
“Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime — (i) be sentenced to a term of imprisonment of not less than 5 years;”
Wilson was sentenced under this provision to five years for possession of a firearm. Wilson’s conviction for possession with intent to distribute more than five grams of cocaine base after having previously been convicted of a drug felony, subjects him to a ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(B).
Wilson argues that the five-year mandatory minimum under § 924(c)(1)(A) should not be applied to him because § 841(b)(1)(B) subjects him to a longer mandatory minimum sentence, and the prefatory clause of § 924(c)(1)(A) does not allow for the application of a mandatory minimum to be imposed under that statute in cases where a greater minimum sentence is imposed “by this subsection or by any other provision of law.”
While Wilson’s argument is supported by the Second Circuit’s holding in United States v. Whitley, 529 F.3d 150, 151 (2d Cir.2008), this Court recently held in United States v. Abbott, 574 F.3d 203, 206-07 (3d Cir.2009), that the mandatory sentence set forth in 18 U.S.C. § 924(c) must run consecutively with any mandatory sentence currently provided by statute. We must follow this precedent.
In Abbott, we joined the majority of other Courts of Appeals in holding that the *782prefatory clause in § 924(c)(1)(A) does not foreclose consecutive mandatory minimum sentences where the predicate offense includes a mandatory minimum term of imprisonment that is longer than the sentence required by § 924(c). See United States v. Easter, 553 F.3d 519 (7th Cir.2009); United States v. Parker, 549 F.3d 5, 10-12 (1st Cir.2008); United States v. Jolivette, 257 F.3d 581 (6th Cir.2001); United States v. Studifin, 240 F.3d 415 (4th Cir.2001); United States v. Alaniz, 235 F.3d 386 (8th Cir.2000). While we noted in Abbott that reading the prefatory clause in isolation may lead to the conclusion that § 924(c) mandatory mínimums do not apply when a predicate offense carries a greater mandatory minimum, we found that reading “suspect on its face.” 574 F.3d at 209. The prefatory clause, we explained, applies to “greater minimum sentences provided by this subsection, not for predicate offenses.” Id. We held in Abbott that “the minimum sentences specified by § 924(c)(1) apply in addition to the punishment provided for a predicate offense. Thus, the prefatory clause requires a comparison between the minimum sentences specified in §§ 924(c)(1)(A)(i) — (iii) and (B)-(C), and, at a minimum, others associated with using, carrying, or possessing a firearm — not the predicate offense itself.” Id.
Finally, we noted in Abbott that interpreting the prefatory clause in § 924 in the manner suggested by Wilson would run counter to the clear intent of Congress to increase the sentences of those who possess, brandish, or discharge a firearm in the course of committing a drug felony. Id. Using a hypothetical, we illustrated the bizarre sentencing results that would undoubtedly occur if the prefatory clause were found to apply to the predicate offense. See id. at 209 (The hypothetical demonstrated that those charged with a lesser drug felony and an offense under § 924(c) would actually face longer mandatory minimum sentences than those convicted of a greater drug felony and the same violation of § 924(c) because those charged with the greater drug felony would see their mandatory minimum under § 924(c) wiped out.) Abbott makes it clear that we will not apply the prefatory clause to the predicate offense.
Here, Wilson was convicted on a felony drug charge under 21 U.S.C. § 841(b)(1)(B) as the predicate offense to his conviction under § 924(c)(1)(A)© for possession of a firearm. Because the prefatory clause in § 924(c)(1)(A) does not apply when a greater mandatory minimum is found in the predicate offense, Wilson was properly sentenced. We therefore hold that the District Court did not err in sentencing Wilson to consecutive mandatory minimum sentences under 18 U.S.C. § 924(c)(1)(A) and 21 U.S.C. § 841(b)(1)(B).
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
. Further, the District Court's record reveals two additional arguments for refusing to give the instruction. First, Wilson did not request, nor put into writing, the instruction at the charging conference as required by Rule 30 of the Federal Rules of Criminal Procedure. We have held in United States v. Davis, however, that an instruction request need only be sufficiently clear for the trial judge to fairly consider it. 183 F.3d 231, 252 (3d Cir.1999). Wilson’s failure to comply with Rule 30, therefore, is not dispositive in this case. Second, the government argued that since Tunkara was not formally charged in the federal indictment against Wilson, he is not an accomplice for purpose of a jury instruction. While the Court acknowledged that Tunkara was not charged in the instant case, it did not elaborate as to the weight it gave to this issue. (App.161) Neither of these arguments is dis-positive for the purpose of our appellate review. We, therefore, focus our review on the necessity of providing the instruction and we need not further elaborate on these two arguments.
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OPINION OF THE COURT
FISHER, Circuit Judge.
A jury convicted Nafice Fields of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 84 months of imprisonment, followed by three years of supervised release. Fields raises two issues on appeal. First, he argues that the District Court erred in denying his motion to sever his *784case from that of his co-defendant, Kaleel Wilson. Second, Fields challenges the District Court’s denial of his motion for judgment of acquittal based on the Government’s alleged failure to present sufficient evidence to support his conviction. For the reasons set forth below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual' context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
The events giving rise to Fields’ conviction occurred on July 5, 2007. At approximately 10:15 p.m., Philadelphia Police Officers Jared Netzer and Ryan Murphy stopped a white minivan for speeding. Fields’ co-defendant, Kaleel Wilson, was driving the vehicle; Baba Tunkara was seated in the front passenger seat; and Fields was seated alone in the rear, third row. Officer Murphy observed a fully loaded, nine millimeter semi-automatic handgun under the seat at Fields’ feet. A further search uncovered a second gun in Tunkara’s pocket and 16.2 grams of crack cocaine in 115 small baggies. The officers arrested all three men.
On November 7, 2007, a grand jury indicted Fields with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The same indictment also charged Wilson with both narcotics and firearm offenses.1 On January 15, 2008, Fields filed a motion to sever his trial from that of Wilson. The motion was denied. The co-defendants proceeded to a joint trial in the United States District Court for the Eastern District of Pennsylvania. During trial, government witness Desmond Davis testified that, earlier on the same day as the arrest, he saw Fields, with a black gun on his hip, briefly exit the minivan to hand something to someone on the street. He also testified that he saw Wilson in the same van on the same day. Based on his observations, Davis stated that he believed Fields and Wilson were dealing drugs. The Government also put Hildebert Prawl, the manager of the Hertz rental car location that rented the minivan to Wilson, on the stand. Prawl testified that Hertz vehicles are thoroughly cleaned between rentals.
At the close of the Government’s case, Fields moved for judgment of acquittal, which the District Court denied. Fields did not renew the motion at the close of evidence or after the verdict. A jury found Fields guilty of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and the District Court sentenced him to 84 months of imprisonment and three years of supervised release. Fields filed a timely appeal.
II.
The District Court had subject matter jurisdiction over this case pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291. We review the joinder of defendants under Federal Rule of Criminal Procedure 8(b) de novo. United States v. Thornton, 1 F.3d 149, 152 (3d Cir.1993). We review the denial of a pretrial motion for severance for an abuse of discretion. United States v. Hart, 273 F.3d 363, 369 (3d Cir.2001). When reviewing the sufficiency of evidence necessary to sustain a conviction, “we must view the evidence in the light most favorable to the government.” United States v. Anderson, 108 F.3d 478, 480 (3d Cir.1997). We “will sustain the verdict if any rational trier of *785fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). If a defendant fails to renew his motion for judgment of acquittal at the close of the defense’s case, “the alleged insufficiency of the evidence with respect to the essential elements of the offense must constitute plain error in order to warrant reversal.” Anderson, 108 F.3d at 480.
III.
Fields challenges his conviction on two separate grounds. First, Fields argues that the District Court erred in denying his motion to sever his trial from that of his co-defendant, Wilson. Next, Fields contends that the Government failed to present sufficient evidence to support his conviction. We will consider each argument in turn.
A.
Fields’ disagreement with the District Court’s refusal to sever his case is twofold: first, Fields contends that, because he was not charged with conspiracy, joinder was improper under Federal Rule of Criminal Procedure 8(b); second, Fields argues that the District Court’s failure to sever his case resulted in prejudice due to the additional drug charges filed against co-defendant Wilson.
Rule 8(b), which governs the joinder of multiple defendants in criminal prosecutions, states:
“The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.”
Fed.R.Crim.P. 8(b). The Third Circuit has held that “ ‘[tjhere is a preference in the federal system for joint trials of defendants who are indicted together.’ ” United States v. Davis, 397 F.3d 173, 182 (3d Cir.2005) (quoting Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). Contrary to Fields’ contention, Rule 8(b) only requires that the offenses be part of the same act or transaction, or same series of acts or transactions; it does not require that a defendant be charged with conspiracy.
There is sufficient evidence here to demonstrate that Fields and Wilson were engaged in the same series of acts or transactions. Both Fields and Wilson were in the white minivan when Officers Netzer and Murphy pulled the van over for speeding, and, after observing the gun, the officers proceeded to arrest Fields and Wilson together. In addition, Davis’ eyewitness testimony not only connected each defendant to the white minivan, but also suggested that Fields and Wilson were jointly selling drugs from the vehicle.
This case is similar to Davis, 397 F.3d at 173. In Davis, three occupants arrested from the same vehicle were jointly tried for narcotics and gun related offenses, notwithstanding the lack of a conspiracy charge. Id. at 176-77. When one of the defendants argued on appeal that joinder was inappropriate because the drugs and guns on each defendant were not related, we concluded that “these ‘seemingly unrelated’ guns and drugs were all recovered from men riding together in the same car and, therefore, there was a strong basis to conclude that these guns and drugs were connected.” Id. at 182 (emphasis added). The differing facts of Davis — the Davis defendants’ vehicle led police on a high-speed chase and each Davis defendant was in possession of both firearms and drugs— were not central to our analysis on this *786point and thus do not affect the application of Davis here. Therefore, although Fields and Wilson were not charged identically, we find that joinder was proper under Rule 8(b).
Federal Rule of Criminal Procedure 14(a) governs severance due to prejudicial joinder. The rule provides as follows:
“If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.”
Fed.R.Crim.P. 14(a). A defendant bears “a heavy burden and must demonstrate not only that the court would abuse its discretion if it denied severance, but also that the denial of severance would lead to clear and substantial prejudice resulting in a manifestly unfair trial.” United States v. Lore, 430 F.3d 190, 205 (3d Cir.2005) (internal citations and quotations omitted). A defendant is not entitled to severance solely because the evidence against a co-defendant is more damaging. Davis, 397 F.3d at 182. The issue is whether the jury will be able to “compartmentalize the evidence as it relates to separate defendants.” Id.
Here, Fields does not meet his heavy burden by arguing that Wilson’s additional drug charges automatically prejudiced him because he was only charged with gun possession. Not only are such “mere allegations of prejudice” insufficient, United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981), but here the distinct charges may actually better enable the jury to “compartmentalize the evidence.” Davis, 397 F.3d at 182. Furthermore, as in Davis, the facts of the present case are “relatively simple”: the acts in question were confined to a single day; there are only two defendants; and “there are no overly technical or scientific issues.” Id. Finally, it is not disputed that the District Court gave a limiting instruction directing the jury to consider the charges against each defendant separately. All things considered, since Fields has not produced any other evidence of prejudice, we cannot agree that the District Court abused its discretion by failing to sever Fields’ trial under Rule 14(a).
B.
Fields also contends that the Government did not offer sufficient evidence to support his conviction under 18 U.S.C. § 922(g)(1). Specifically, Fields claims that the Government failed to establish that he was in possession of a firearm.
We have held that to establish possession of contraband “the government need not show proof of actual possession.” United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993). “[T]o show [the alternative] ‘constructive’ possession ... the government must submit sufficient evidence to support an inference that the individual ‘knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.’ ” Id. (citations omitted). While dominion or control may be shared with others, “mere proximity,” “mere presence on the property” where the contraband is located, or “mere association with the person” who exercises control over the contraband or property is “insufficient to support a finding of possession.” Id. (citations omitted).
Fields argues that there is no evidence that he had knowledge of the firearm’s presence or that he intended to exercise dominion or control over the firearm. In support of his position, Fields notes that he never gave a statement affirming his *787ownership of the gun, that there was no physical evidence, such as fingerprints, of possession, and that he did not engage in any furtive movements or act in a suspicious or nervous manner when the police approached the van.
Since Fields failed to renew his motion for judgment of acquittal, the alleged insufficiency of evidence must constitute plain error to warrant reversal. See Anderson, 108 F.3d at 480. While we acknowledge that proof of actual possession does not exist in this case, there is sufficient evidence to permit a rational jury to find constructive possession. Davis testified that he saw Fields carrying a black gun earlier on the same day as his arrest as he exited and reentered the white minivan. Perhaps most significantly, Officer Murphy testified that he observed the gun directly below Fields, who sat in the rear seat of the van. The fact that Fields was in such close proximity to the gun in a small, enclosed vehicle, as opposed to a larger and more spacious residence, is especially telling. Finally, Prawl’s testimony regarding the routine cleaning procedures at Hertz suggests that the gun did not belong to a prior occupant of the vehicle.
Fields also challenges Davis’ testimony, arguing that it is inconsistent with both Davis’ earlier, signed statement and the other evidence presented at trial. Unlike this Court, which is limited to the skeletal trial transcript, the jury had the best opportunity to evaluate Davis’ credibility. See United States v. Jannotti, 673 F.2d 578, 598 (3d Cir.1982) (“Credibility determinations are for the jury.”). Accordingly, the jury was entitled to find Davis’ testimony rehable.
In sum, there is sufficient evidence to support the inference that Fields knowingly had both the power and intention to exercise dominion and control over the firearm. Therefore, we cannot find that the District Court erred in denying Fields’ motion for judgment of acquittal.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of conviction.
. Tunkara had told police that Wilson handed him the gun as Officers Netzer and Murphy were pulling the vehicle over.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472650/
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OPINION OF THE COURT
FISHER, Circuit Judge.
Anthony Bizzell appeals from his conviction and sentence for one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Bizzell argues that the District Court committed reversible error when it refused to suppress an inculpatory statement Bizzell made to an officer prior to the issuance of appropriate warnings, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Bizzell also raises a procedural challenge to his sentence and a constitutional challenge to the application and validity of 18 U.S.C. § 922(g)(1). Because we find the Miranda violation was reversible error, we will not reach these latter arguments.
I.
We write exclusively for the parties who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In the early morning of February 24, 2007, three Philadelphia police officers, George Marko, Joseph Kelly, and Brandon Bryant, responded to a radio call of gunshots and observed Anthony Bizzell standing near the scene holding a beer. Marko got out of the car to talk to Bizzell, who then fled. The officers gave chase, eventually catching Bizzell in an alleyway. Officer Marko indicated to his fellow officers that he had seen Bizzell pull a gun from his waistband. The officers tackled Bizzell and restrained him. The officers recovered a gun from the scene of the arrest. In the course of the struggle, Bizzell sustained injuries to his face and mouth, which required medical treatment.
On May 8, 2007, a grand jury in the Eastern District of Pennsylvania returned a one-count indictment against Bizzell, charging him with possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Bizzell pleaded not guilty. Prior to his jury trial, Bizzell filed a motion to suppress a statement that he made *789to a police officer after he had been arrested and while being treated in a hospital for the injuries he received as a result of that arrest. Specifically, he asserted that he had not been informed of his rights pursuant to Miranda and that, therefore, the officer had taken that statement in violation of his Fifth and Sixth Amendment rights.
The District Court held a suppression hearing on December 3, 2007. At the hearing, Officer James O’Connell of the Philadelphia Police Department testified that on February 24, 2007, at around 2:00 a.m., he transported Bizzell to the Germantown Hospital. O’Connell stated that while Bizzell was at the hospital, Bizzell asked O’Connell what he was being arrested for, to which O’Connell responded, “You had a gun.” (App.50-51.) O’Connell then asked him, “What were you doing with a gun?” (App.51.) Bizzell answered that he always carried a gun. (Id.) O’Connell did not record this information, but later relayed his conversation with Bizzell to one of the arresting officers, Officer Joseph Kelly. At no point prior to this statement did O’Connell or any other police officer inform Bizzell of his Miranda rights.
The District Court, ruling from the bench, denied Bizzell’s motion to suppress the statement. It explained:
As far as the hospital goes, my holding is that [Bizzell] was not undergoing custodial interrogation. That he asked the question, what he was arrested for, and the officer told him. And then he volunteered the statement of [sic] that he always carries a gun. Even if the officer asked him, well, you know, you’re being arrested for carrying a gun, why do you carry a gun? That’s not a custodial interrogation, in my view. So the motion to suppress will be denied.
(App.60.)
At trial, the Government introduced the testimony of the three arresting officers, which was neither in perfect agreement nor in irreconcilable dispute. Among the testimony was Officer Marko’s statement that, during the pursuit, he saw Bizzell pull a gun from his waistband which prompted him to yell “gun” to his partner. Marko also testified that he saw Bizzell bring “the gun behind him like this, and point[] it back towards [Marko].” (App. 134-35.) Neither of the other two officers stated that they saw a gun until after Bizzell was forced to the ground. Bryant testified that when he tackled Bizzell, he “heard something hit the ground, like a metal type hitting the ground.” (App.201.) Marko also testified that the officers struggled with Bizzell “for approximately a minute, trying to get the gun out of his hand.” (App.135.) Marko and Kelly testified that, after Bizzell was handcuffed, Kelly located a gun in the nearby vicinity and unloaded it, although Bryant did not see Kelly pick it up.
The Government then introduced the testimony of Officer O’Connell, which mirrored the testimony he had given at the earlier suppression hearing. Specifically, O’Connell told the jury:
While we were at the hospital, [Bizzell] asked why he was being locked up. And I told him it was because he had a gun. And I asked him, why would he have a gun? And he said, I always have a gun, because I was shot before.
(App.209-10.)
The theories presented by the defense centered on various alleged inconsistencies in the arresting officers’ testimony: neither Bryant nor Kelly observed the gun prior to Bizzell being tackled by the officers and Bryant did not observe where Kelly picked up the gun. Additionally, the defense set forth a “second incident” theory based on Marko’s testimony in an earlier state court proceeding that the encounter took place at 11:45 p.m. on February *79028, 2007, and various corroborating notes in the arrest report.
In the course of jury summations, the Government argued:
And, then we have the defendant actually admitting to having the gun.... [P]erhaps he thought that, by the fact that he was having — having a gun for self defensive purposes, it was okay to have the gun. It’s impossible for us to know. None of us are in the defendant’s head. But, the point is that he admitted to the police that he had the gun, which again is consistent with all of the other evidence in this case.
(App.280-81.) In its rebuttal, the Government displayed the arrest memo to the jury, stating:
There it is in black and white, as they say. This was the memo that was written by [Officer] Marko. Clearly it’s been recorded by the police. The defendant states to Police [Officer] O’Connell on P.W. 1400 that he always carries a gun because he’s been shot before, loaded with seven rounds in the chamber.
(App.294-95.)
After deliberating for a little over an hour, the jury returned a guilty verdict against Bizzell. Following sentencing, Bizzell filed this timely appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 8231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
“We review a denial of a motion to suppress for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the court’s properly found facts.” United States v. Shabazz, 564 F.3d 280, 286 n. 4 (3d Cir.2009) (internal quotation marks and select punctuation omitted). We review the record de novo to determine whether a constitutional error is harmless. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
III.
Bizzell argues that the District Court committed reversible error under Miranda by refusing to suppress the statement he made to O’Connell in which Bizzell indicated that he always carried a gun because he had been shot before. He contends that this constitutional error was not harmless beyond a reasonable doubt and, as a result, this Court must vacate the judgment of conviction and sentence. In response, the Government, despite having argued to the contrary in the District Court, concedes on appeal that it was, in fact, constitutional error to have admitted the statement at trial. Nevertheless, according to the Government, this Court should hold that the error was harmless in light of the rest of the evidence presented against Bizzell.
A.
Although the Government concedes the Miranda violation on appeal, we will address it briefly here.
“Under the prophylactic rules announced in Miranda, a statement made by a suspect in response to custodial interrogation after he or she has elected to remain silent is inadmissible at trial.” United States v. Brownlee, 454 F.3d 131, 146 (3d Cir.2006). The Miranda safeguards are triggered when a person who is in custody is subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Because Bizzell was under arrest at the time of the questioning, he was clearly in “custody” for Miranda purposes. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The Government also concedes, and the record supports, that no Miranda warnings were *791issued prior to the conversation in question.
The only question, then, is whether O’Connell’s question was an “interrogation.” An interrogation includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. Though the District Court held that O’Connell’s question regarding the gun was merely responsive to Bizzell’s question regarding his arrest and thus not an interrogation, we disagree. In Brownlee we held that an officer asking “Why would you do something dumb like this?” and “With a gun?” constituted an interrogation. We reasoned, “It is difficult to imagine questions that are more likely to evoke an incriminating response — that is, a ‘statement amounting to admissions of part or all of the offense’ ” 454 F.3d at 146-47 (quoting Innis, 446 U.S. at 301 n. 5, 100 S.Ct. 1682) (select internal punctuation omitted). Although Bizzell initially asked O’Connell what he was being arrested for, O’Connell, after answering that question, expressly asked him why he had a gun. This latter question was reasonably likely to — and, in fact, did — elicit an incriminating response from Bizzell.
Accordingly, we hold that O’Connell’s questioning was a custodial interrogation. Because Bizzell had not been issued any Miranda warnings, his statements regarding his possession of the gun were not admissible against him at trial. The District Court, therefore, erred in denying Bizzell’s motion to suppress the statement.
B.
Because the District Court erred in admitting into evidence a statement obtained in violation of Miranda, we must reverse unless we can say that the admission of the defendant’s statement was harmless. Brownlee, 454 F.3d at 148. In making this determination, we apply the familiar test set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), for assessing the harmlessness of a constitutional error. Under Chapman, the Government must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. 824; Brownlee, 454 F.3d at 148 (applying the harmless-beyond-a-reasonable-doubt test to a Miranda violation). “The question ‘is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ ” Gov’t of V.I. v. Davis, 561 F.3d 159, 165 (3d Cir.2009) (quoting United States v. Korey, 472 F.3d 89, 96 (3d Cir.2007)).
In this case, we cannot conclude that the erroneous admission of Bizzell’s statement was harmless. The analysis here closely tracks our opinion in Brownlee, 454 F.3d at 131. In Brownlee, the defendant was indicted for his alleged involvement in a carjacking. His defense at trial was mistaken identity. The Government’s principal evidence against the defendant was the testimony of four eyewitnesses, whose identification was bolstered by statements made by the defendant prior to receiving Miranda warnings. Our holding that the error in admitting the statements was not harmless turned on two principles: first, that the statements went to the heart of the government’s evidence against the defendant; and second, that the government’s reliance on those statements belied any argument that their admission did not influence the jury.
Here, Bizzell’s statement that he always carried a gun went directly to the only *792issue in dispute at trial — whether Bizzell was in possession of a gun — and seriously undermined Bizzell’s defense. The Government attempts to avoid this observation by arguing that the statement was a “minor factor” in the case and that the verdict “did not rest upon” its admission. This analysis does not satisfy the strict standard set by Chapman. Chapman requires us to conclude that there is no “reasonable possibility that the evidence complained of might have contributed, to the conviction.” Chapman, 386 U.S. at 24, 87 S.Ct. 824 (emphasis added). If the erroneously admitted statement was a factor, albeit even a minor one, in the jury’s verdict, then the error was not harmless and we must reverse.
Additionally, the Government’s reliance on Bizzell’s statement in its jury summation and rebuttal is a strong indicator that the Government intended the jury to give weight to the statement. As we noted in Brownlee, “[I]t is difficult for the Government to argue with effect that the admission of the confession did not contribute to [the defendant’s] conviction when it submitted just the opposite view to the jury during the trial.” 454 F.3d at 148.
In arguing that it has satisfied its burden, the Government relies on United States v. Shabazz, 564 F.3d 280 (3d Cir.2009), but that case is readily distinguishable. In Shabazz, we held that a robbery defendant’s pre-Miranda statement that he had “plenty more” cash than the amount found in his wallet was harmless in light of the overwhelming amount of evidence presented against him at trial, including surveillance video footage and the testimony of several of the defendants’ accomplices. Id. at 286. Unlike in Shabazz, there was no forensic evidence or civilian third-party testimony admitted against Bizzell. Rather, the Government’s case largely hinged on the officers’ credibility, which the defense argued was undermined by various inconsistencies in the officers’ testimony.
Perhaps more importantly, the statement in Shabazz was merely evidence from which a jury might infer the defendant’s participation in criminal activity. Here, Bizzell’s statement that he always carried a gun was tantamount to a confession where the only issue at trial was Bizzell’s possession of a gun. Thus, in distinguishing Shabazz, we are cognizant of the Supreme Court’s admonition that “[a] confession is like no other evidence.” Fulminante, 499 U.S. at 296, 111 S.Ct. 1246. As the Court explained, “[T]he defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” Id. (internal quotation marks omitted). “Certainly, confessions have a profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so”; accordingly, a reviewing court must “exercise extreme caution before determining that the admission of the confession at trial was harmless.” Id. (internal quotation marks omitted); see also Broumlee, 454 F.3d at 148 (rejecting the government’s harmless error argument and referring to Fulminante).
We cannot conclude from this record that the admission was harmless. Bizzell’s statement that he always carried a gun was a highly influential piece of evidence that spoke directly to the core issue in the Government’s case. Surely aware of its power, the Government reiterated the statement to the jury in its summation and rebuttal. The Government has thus failed to meet its burden of demonstrating that the District Court’s error in admitting the statement did not contribute to the jury’s verdict.
IV.
For the foregoing reasons, we will vacate the conviction and sentence, reverse *793the District Court’s order denying the motion to suppress the statement, and remand for proceedings consistent with this opinion.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472654/
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OPINION
PER CURIAM.
Pro se petitioner Marina Karakozova filed a civil rights lawsuit in the United States District Court for the Western District of Pennsylvania alleging that she was the victim of employment discrimination. She now seeks a writ of mandamus to compel the Defendant in that lawsuit to comply with certain of her demands. For the reasons that follow, we will deny the petition.
On April 17, 2009, Karakozova initiated the underlying lawsuit, claiming that her contract to work as a Research Assistant at the University of Pittsburgh, School of Pharmacy (“The University”) was terminated based on her national origin. Karakozova is a citizen of the Russian Federation and the recipient of an H-1B visa which is premised on her employment at the University. Concluding that Karakozova had demonstrated a reasonable probability of success on the merits of her claim of national origin discrimination, and that she had made a strong showing of immediate and irreparable harm in the form of deportation, the District Court granted her request for a preliminary injunction. By the terms of its order, which was entered on June 11, 2009, 2009 WL 1652469, the District Court required the University to maintain Karakozova’s employment for a period of ninety days while she exhausted her administrative remedies and sought alternative employment. Since then, Karakozova has filed a number of motions for reconsideration and clarification, in addition to several documents entitled “Plaintiffs Opinion” seeking other forms of relief from the District Court. In them she claims, among other things, that the University is not complying with the directives of the District Court. On July 31, 2009, 2009 WL 2245645, the District Court entered an order denying two of *801Karakozova’s motions for reconsideration. The Court concluded that through these motions, Karakozova was “essentially seeking a back door extension of the Court’s 90 day stay of her employment, and she is seeking reconsideration of the Court’s order requiring her to pursue her administrative remedies (namely, the Grievance Appeal through the University).”
Karakozova then turned to this Court, filing the instant “Emergency Petition for Writ of Mandamus.” Through this petition, Karakozova seeks the following relief:
The emergency relief Petitioner seeks is quite simple: She wants to obligate Respondent to promptly execute the Court’s Memorandum Order (Document No. 42) in accordance with the Court’s recommendations and the University of Pittsburgh’s policies (emphasis added). [Sic.] Second, Petitioner would like to obligate Respondent (which includes but not limited: employees, students, contractors, etc. to execute Memorandum Order immediately and not later than within 5 business days from the date of issuing notification by the Court of Appeals. Third, Petitioner would like to obligate Respondent to promptly provide answers on all Petitioner’s requests) (future requests or already sent to Respondent) for clarification of internal procedures, which allow Petitioner to execute the Court’s order promptly.
She claims that the remedy of mandamus is necessary due to the limited amount of time available to her and her inability to secure such relief from the District Court.
The remedy of mandamus is reserved for the most extraordinary of circumstances. DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir.1982). In order to ensure that mandamus is sparingly granted, a petitioner seeking a writ of mandamus must demonstrate that no other adequate means are available to obtain the desired relief and that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899))). Here, Karakozova seeks an order directing the University to comply with the District Court’s order and, essentially, to participate in good faith in the District Court and related proceedings. She has not demonstrated either that no other adequate means are available to obtain this relief or that her right to such relief is “clear and indisputable.”
Karakozova’s lawsuit is currently pending before the District Court, which has responded to her numerous filings and requests for relief in a timely manner. The management of its docket is committed to the sound discretion of the district court. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Karakozova has not alleged that the District Court has in any way abused its discretion in managing its docket and, in any event, any such claim would not be cognizable under the circumstances presented here in the context of a mandamus petition. The writ of mandamus may not be used as a substitute for the regular appeals process. See In re Briscoe, 448 F.3d 201, 212 (3d Cir.2006). While we recognize that Karakozova has a limited amount of time in which to press her claims, she must direct all of her requests for relief to the District Court while her lawsuit remains pending there.
Based on the foregoing, we will deny the petition for a writ of mandamus.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472656/
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OPINION
SMITH, Circuit Judge.
Jose Arroyo appeals from the decision of the United States District Court for the Eastern District of Pennsylvania, which affirmed the final decision of the Commissioner of Social Security denying his claim for disability benefits under Title II of the Social Security Act. The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review the factual findings of the Commissioner for substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks and citation omitted). “Our review of legal issues is plenary.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.2000). For the reasons set forth below, we will affirm.
Arroyo filed for disability benefits in September of 2003, alleging disability due to a physical impairment following a lumbar laminectomy in 1989. After a hearing, the Administrative Law Judge (ALJ) concluded that Arroyo had the residual functional capacity (RFC) to perform sedentary work which afforded the option to *803alternate sitting and standing, and that these physical limitations were compatible with Arroyo’s past relevant work with a plumbing supply business. As a result, the ALJ denied Arroyo’s application for disability benefits.
Arroyo appealed to the District Court, arguing that the ALJ’s decision was not supported by substantial evidence because the ALJ’s finding regarding his RFC ignored Arroyo’s work history report, which indicated that his position with the plumbing supply business required lifting heavy items, and his wife’s testimony, which concerned Arroyo’s illiteracy and his physical capabilities. The District Court agreed, reversing the decision and remanding the matter for further proceedings. The District Court directed that Arroyo’s case
should be remanded in order that the ALJ review the entire record, including all relevant evidence submitted by [Arroyo] with respect to past relevant work and alleged illiteracy. If the ALJ should determine that Plaintiff does not qualify for disability as a result of his impairment or combination of impairments, the ALJ must articulate the weight applied to the evidence and the reasons for rejecting Plaintiffs claim of disability.
Because the ALJ’s decision fails to demonstrate consideration of all relevant evidence, particularly evidence concerning Plaintiffs past relevant work and alleged illiteracy, the matter should be remanded for further consideration and articulation as to the weight applied to the evidence. In light of this re-evaluation of the evidence, the ALJ should also reconsider his credibility determination. If the ALJ should determine that Plaintiff or his wife are not entirely credible, he must provide specific reasons for his determination.
Additionally, [Arroyo] should be afforded a reasonable opportunity to supplement the medical evidence to address the issues identified herein____Finally, [Arroyo] should remain cognizant that the ultimate burden of proving disability rests with him.
On remand, Arroyo submitted additional medical evidence and provided additional testimony. After considering all of the evidence, the ALJ found that Arroyo was illiterate, but that he had the RFC to perform the full range of light work. Because light level work was incompatible with Arroyo’s past relevant work, the ALJ proceeded to determine whether there were other jobs in the national economy that Arroyo could perform. Applying these findings to the Medical-Vocational Guidelines, the ALJ determined that Arroyo was not disabled. The ALJ recognized that his finding regarding Arroyo’s RFC had changed. He explained that his previous decision had been vacated by the Appeals Council and that consideration of all of the credible evidence for the period before December 31, 1993, Arroyo’s date last insured, showed that the earlier RFC finding that Arroyo could perform only sedentary work was not consistent with the evidence and that Arroyo had the RFC for the full range of light level work.
Arroyo appealed again to the District Court. He argued that the ALJ violated the law of the case doctrine. According to Arroyo, this doctrine precluded the ALJ from changing his RFC finding from sedentary with a sit/stand option to the full range of light work. The District Court rejected that argument and determined that there was substantial evidence to support the decision rendered by the ALJ following remand.
This timely appeal followed. Arroyo contends that the District Court erred in its application of the law of the case doctrine, and submits that we must reverse to correct this legal error. Furthermore, he *804asserts that application of the familiar five step sequential analysis for disability benefits to the RFC finding for sedentary work with a sit/stand option and the ALJ’s other findings requires the entry of judgment in his favor. The Commissioner asserts that the District Court did not err because, even if the law of the case doctrine is applicable to administrative proceedings of this nature, the District Court did not make a finding regarding Arroyo’s RFC.
“The law of the case doctrine directs courts to refrain from re-deciding issues that were resolved earlier in the litigation.” Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.1997). As the Supreme Court instructed in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), “[t]he doctrine of law of the case comes into play only with respect to issues previously determined.” Id. at 347 n. 18, 99 S.Ct. 1139 (citation omitted). After scrutinizing the District Court’s opinion reversing the ALJ’s decision and remanding the matter for further proceedings, we conclude that the issue of Arroyo’s RFC was not resolved by the District Court. Thus, we need not determine if the law of the case doctrine applies to this administrative proceeding and whether the District Court violated the doctrine.
In our view, the District Court’s remand for further administrative proceeding was quite broad. It directed the ALJ on remand to “review the entire record” to determine if Arroyo had demonstrated that he was disabled. Although the District Court emphasized that the ALJ must reassess his findings with respect to Arroyo’s past relevant work and his illiteracy, the District Court did not limit or restrict the ALJ’s reconsideration to those two particular aspects of the case. Rather, because the ALJ failed to consider “all relevant evidence,” the District Court stated that the “matter should be remanded for further consideration and articulation as to the weight applied to the evidence.” The Court specified that the ALJ was to re-evaluate the evidence and to “reconsider his credibility determination[s,]” which pertained to not only Arroyo’s credibility, but also that of his wife and Dr. Balasubramanian’s opinion. Furthermore, the Court directed that Arroyo should be afforded a reasonable opportunity to supplement the medical evidence. Indeed, additional medical evidence was submitted during the supplemental hearing.
In our view, these instructions on remand contemplate that Arroyo’s RFC would be considered anew. We cannot ignore that a re-evaluation of all relevant evidence and a reconsideration of the credibility determinations would be unnecessary if the remand was solely for the purpose of reexamining the demands of Arroyo’s past relevant work and his wife’s testimony about his literacy. Nor would there be any reason to afford Arroyo an opportunity to submit additional medical evidence if the ALJ was limited on remand to reviewing the nature of Arroyo’s past work with the plumbing supply business and the testimony of Arroyo’s wife regarding his ability to read and write.
Having determined that the District Court’s earlier decision did not resolve Arroyo’s RFC, we conclude that the ALJ did not err on remand by reassessing Arroyo’s RFC. Because there is substantial evidence to support the finding that Arroyo had the RFC for the full range of light work, we will affirm the judgment of the District Court.
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*806OPINION
PER CURIAM.
Herman St. Claver Burrell petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final removal order. We will deny the petition for review.
I.
Burrell is a native and citizen of Jamaica.1 He entered the United States as a lawful permanent resident in 1965 at the age of 10. A.R. 595. Burrell was served with an Order to Show Cause in 1989, charging him with being deportable for having been convicted of a controlled substance violation. A.R. 703-05. Burrell’s deportation was ordered in absentia on June 4, 1991, A.R. 689-70; but the proceeding was reopened because neither Burrell nor his attorney had notice of the hearing. The proceedings were administratively closed on May 26, 1992 because Burrell was incarcerated. A.R. 674. The matter was recalendared on a motion by the Department for Homeland Security (DHS) in 2002, A.R. 670; and Burrell applied for a waiver of inadmissibility under former Immigration and Nationality Act (INA) § 212(c) [8 U.S.C. § 1182(c) ], and for cancellation of removal under INA § 240A(a) [8 U.S.C. § 1229b(a) ].2
A hearing was held on January 4, 2007. The IJ and attorneys for the parties went through Burrell’s rap sheet, and discussed how much time he served for each crime. (The IJ’s decision lists 20 convictions). The Government made an oral motion to pretermit Burrell’s applications, and the IJ informally heard argument on both sides. The IJ then granted the motion to pretermit, finding that Burrell’s conviction for burglaries was an aggravated felony, and that his shoplifting crimes and his probation violation involving unlawful taking were crimes involving moral turpitude. Burrell did not testify, because the IJ did not consider the merits of the applications.
Burrell filed a timely appeal to the Board of Immigration Appeals (BIA), which dismissed the appeal. The BIA held that even if Burrell were able to obtain § 212(c) relief for his state controlled substance and theft aggravated felony convictions, those same convictions would render him ineligible for cancellation of removal in conjunction with his later convictions. The BIA also rejected Burrell’s due process claim. Burrell filed a timely, counseled petition for review.
II.
When Burrell was convicted of his first crimes, INA § 212(c) granted the Attorney General discretion to waive deportation in the case of legal permanent residents who had resided in the United States for at least seven years, so long as they had served less than five years in prison for an aggravated felony. See United States v. Torres, 383 F.3d 92, 95-96 (3d Cir.2004). The Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which became effective in April 1997, repealed § 212(c) and replaced it with § 240A. Under the current provision, the Attorney General may cancel removal of an alien who has been a legal permanent resident for not less than five years, has resided continuously in the United States for seven years after having been admit*807ted, and “has not been convicted of any aggravated felony.” INA § 240A(a) [8 U.S.C. § 1229b(a)]; see Ponnapula v. Ashcroft, 873 F.3d 480, 486 (3d Cir.2004). In addition, an alien “who has been granted relief under section 212(c)” is ineligible for cancellation of removal. § 240A(c)(6) [8 U.S.C. § 1229b(e)(6) ].
Burrell was convicted of burglaries in 1985 and 1986, for which he served 18 months in prison. Burrell argued before the IJ that the burglaries would not have been aggravated felonies at the time they were committed, A.R. 128; but conceded that if he were ineligible for § 212(c) relief, the crimes would make him ineligible for § 240A relief because they are aggravated felonies under today’s law, A.R. 128-29. Burrell argues in his brief here that his burglary crimes are not aggravated felonies because “burglary” under New Jersey law encompasses crimes not contemplated by the INA’s aggravated felony definition. Burrell did not make this argument before the BIA; we thus may not consider it, because it is unexhausted. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (petitioner must raise each ground for relief to preserve right to judicial review).
Burrell also argued before the Board that he should have been able to apply for § 212(c) and 240A relief simultaneously, and that 240A’s provision that a waiver cannot be granted to one who has “previously” been granted relief pursuant to § 212(c) would not apply. This Court rejected such an argument in Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 247-48 (3d Cir.2005). Burrell concedes here that he cannot “stack” § 212(c) and § 240A relief, but he argues that he is eligible for § 212(c) relief for his pre-IIRIRA crimes, and that none of the crimes he committed after 1996 is a deportable offense; thus, he does not need § 240A relief. Burrell argues in his brief to this Court that his post-IIRIRA crimes do not involve moral turpitude, but, again, he did not make this argument to the BIA, and we therefore lack jurisdiction to consider it. Abdulrahman, 330 F.3d at 594-95.
Burrell did, however, argue in his brief to the BIA, as well as here, that pursuant to New Jersey law, his postIIRIRA convictions were all “disorderly persons offenses” rather than crimes, and therefore they could not be crimes involving moral turpitude. See N.J. Stat. Ann. 2C:l-4(b) (“Disorderly persons offenses and petty disorderly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State.”).3 This argument is without merit. The fact that New Jersey might not deem Burrell’s offenses “crimes” is not relevant; the proper inquiry is whether the offense was “a formal judgment ,of guilty of the alien entered by a court,” and whether it therefore constitutes a conviction pursuant to 8 U.S.C. § 1101(a)(48)(A). Under the plain language of the statutes, Burrell’s convictions under N.J. Stat. Ann. § 2C:20-10(d) (unlawful taking of means of conveyance);4 § 2C:20-7(a) (receipt of stolen property) and § 2(C):20-ll(c) (shoplifting) constitute formal judgments of guilt. Cf. Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir.2003) (state legislature cannot dictate how term “conviction” is to be construed under 8 U.S.C. § 1101(a)(48)(A)).
Burrell has not successfully challenged the Board’s implicit holding that he needs a waiver for his post-IIRIRA crimes, nor has he successfully challenged the BIA’s *808holding that he is ineligible for cancellation of removal because he has been convicted of an aggravated felony. Because he is ineligible for relief, he is removable as charged.
Burrell’s final argument is that the IJ erred in failing to review the considerable equities in his case. But because the IJ found Burrell statutorily ineligible for relief, the IJ had no authority to consider the equities.
For the foregoing reasons, we will deny the petition for review.
. The IJ's decision notes that Burrell also claimed to be a citizen of the United Kingdom, but that he did not present proof of that citizenship. Burrell was ordered removed to Jamaica, with England as an alternative.
. In 2006, Burrell was again ordered deported for failing to appear at a hearing, but the IJ granted his motion to reopen when he provided proof that he was in the hospital on the date of the hearing. A.R. 604-05, 620.
. The BIA did not directly address this argument, but it did implicitly hold that Burrell would require cancellation of removal for his post-1996 theft convictions. A.R. 2.
. Further, it appears that under New Jersey law, Burrell's "unlawful taking of means of conveyance” conviction is a "crime” of the fourth degree.
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OPINION
BARRY, Circuit Judge.
Appellants Stacey and Marjorie Smith, as assignees of James Sprecher, challenge the District Court’s grant of summary judgment to appellee Continental Casualty Company. The Smiths claim that Continental wrongly denied Sprecher coverage and a defense pursuant to the terms of an insurance policy, and that Continental acted in bad faith in that denial. We will affirm.
L Factual Background
Because we write solely for the benefit of the parties, we presume familiarity with *813the facts and will recite only the basic underpinnings of this case.
James Sprecher (“Sprecher”) was a financial planner doing business as an agent and registered representative of the broker-dealer Hornor, Townsend & Kent (“HTK”). HTK is a subsidiary of Penn Mutual Life Insurance Company, which obtained, from appellee Continental Casualty Company (“Continental”), insurance for HTK’s agents and representatives, including Sprecher. In the early 1990s, appellants Stacey and Marjorie Smith (“the Smiths”) hired Sprecher as their financial planner. The Smiths claim that they asked Sprecher to recommend long-term, conservative investments. Following Sprecher’s recommendation, the Smiths placed over $200,000 in two off-shore asset protection trusts. Those trusts invested the monies into Evergreen Securities (“Evergreen”), an unregistered off-shore entity. In 2001, Evergreen filed for bankruptcy and the Smiths lost all or most of their investment.
Following Evergreen’s collapse, Sprecher was sued by Evergreen’s bankruptcy trustee, who averred that Evergreen was a massive Ponzi scheme involving risky mortgage-backed securities derivatives, and that Sprecher funneled his clients’ monies into Evergreen in exchange for cash payments. After finding out about the lawsuit and a federal grand jury investigation into Sprecher’s activities, HTK terminated Sprecher. Following his termination, Continental denied Sprecher coverage and a defense for the lawsuit initiated by Evergreen’s bankruptcy trustee.
The Smiths then sued Sprecher, asserting claims for breach of contract, negligent misrepresentation, intentional misrepresentation, breach of fiduciary duty, and violations of Pennsylvania consumer protection and securities laws. Consistent with its earlier determination, Continental again denied Sprecher coverage and a defense. In January 2007, Sprecher and the Smiths settled the lawsuit for $150,000 and an assignment of Sprecher’s rights against Continental. That settlement and assignment gave rise to the case at bar: the Smiths have sued Continental, in Sprecher’s shoes, for breach of contract and bad faith denial of insurance coverage.
II. Terms of the Insurance Policy
The insurance policy at issue here provides coverage for claims arising out of “Professional Services” rendered by an agent or representative of HTK. (See Appellants’ App. 157, 159.) In relevant part, the term “Professional Services” is defined as:
those services arising out of the conduct of the Insured’s business as a licensed Agent or General Agent.... Such services shall be limited to:
# ❖ *
e. the sale or attempted sale or servicing of variable annuities, variable life insurance and mutual funds, which are registered with the Securities Exchange Commission (if required), through a Broker/Dealer that is a member of the National Association of Securities Dealers;
[A]nd financial planning activities in conjunction with any of the foregoing.
[Professional Services also includes] those services arising out of the conduct of the Insured’s business as a Registered Representative or Registered Investment Adviser. Such services shall be limited to:
a. Investment Advisory Services; *814b. the sale or attempted sale or servicing of securities (other than variable annuities, variable life insurance and mutual funds) approved by a Broker/Dealer [in question] and incidental advice in connection therewith.
* * *
[A]nd financial planning activities in conjunction with any of the foregoing.
(Id. at 189-90,191.)
Exclusion 6 of the policy excludes from coverage any claim “against a Registered Representative or Registered Investment Adviser involving services or products not approved by [the] Broker/Dealer [in question].” (Id. at 161.)
Exclusion 14 of the policy excludes from coverage any claim:
arising out of insolvency, receivership, bankruptcy or inability to pay of any organization in which the Insured has, directly or indirectly, placed or obtained coverage or in which an Insured has, directly or indirectly, placed the funds of a client or account; however, this exclusion will not apply in the event that:
a. the Insured has placed or obtained coverage or has placed the funds of a client or account with an admitted insurance carrier; which was
b. rated “A” or higher by the A.M. Best Company, Inc. at the time such coverage or such funds were placed.
(Id. at 176.)
III. Analysis
A. Breach of Contract Claim
The Smiths’ breach of contract claim asserts that Continental owed Sprecher coverage and a defense under the terms of the insurance policy and the policy summary. Although we believe that the District Court’s grant of summary judgment as to the breach of contract claim could be affirmed on a number of grounds, we choose just one.
Exclusion 6 of the insurance policy clearly bars coverage. As outlined above, that exclusion precludes coverage for any claim “involving services or products not approved by” HTK. The Smiths’ claims against Sprecher “involv[e] ... products not approved by” HTK — to wit, Evergreen and the off-shore asset protection trusts. The Evergreen investments were not approved by any Broker/Dealer and thus plainly fall under the language of the exclusion.1
B. Bad Faith Denial of Coverage Claim
By statute, Pennsylvania provides for interest, costs, attorneys’ fees, and punitive damages for a bad faith denial of *815insurance coverage. See 42 Pa. Cons.Stat. § 8371. Although the statute does not contain a definition of “bad faith,” the Pennsylvania courts have adopted one:
‘Bad faith’ on part of insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty {i.e., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.
Terletsky v. Prudential Prop. and Cas. Ins. Co., 437 Pa.Super. 108, 649 A.2d 680, 688 (994) (quoting Black’s Law Dictionary 139 (6th ed.1990)); see also Klinger v. State Farm Mut. Auto. Ins. Co., 115 F.3d 230, 233 (3d Cir.1997) (“The standard for bad faith claims under § 8371 is set forth in Terletsky.”).
There is a “two-part test” for bad faith claims, and “both elements ... must be supported with clear and convincing evidence: (1) that the insurer lacked a reasonable basis for denying benefits; and (2) that the insurer knew or recklessly disregarded its lack of reasonable basis.” Klinger, 115 F.3d at 233.
For the Smiths to succeed, there must be evidence from which a factfinder could conclude that Continental had no “reasonable basis for denying benefits” and that it knew of or disregarded the lack of a reasonable basis. Here, there is evidence of neither: Continental clearly did have a reasonable basis for the denial of coverage, see supra, and there is no evidence whatsoever to support the second prong. While perhaps Continental should have spoken with Sprecher before it made a final coverage decision, a failure to follow best practices does not give rise to a bad faith claim. Summary judgment was properly granted.
IV. Conclusion
Ambiguities in insurance policies, of course, must be construed “against the insurer, the drafter of the agreement.” See, e.g., Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983). But there are no ambiguities here, and no genuine issues of material fact. We will affirm the District Court’s order granting summary judgment to Continental.
. The Smiths also argue that Sprecher was entitled to coverage under the "reasonable expectations” doctrine. That doctrine provides, generally, that courts should look to the reasonable expectations of the insured when considering the extent of coverage. See, e.g., Tonkovic v. State Fann Mut. Auto. Ins. Co., 513 Pa. 445, 521 A.2d 920, 925 (1987) (holding that where an "individual applies and prepays for specific insurance coverage, the insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of, and understood, the change”).
The Smiths’ reasonable expectations argument is meritless: the doctrine generally applies only to unsophisticated non-commercial insureds, and only to protect such insureds from "policy terms not readily apparent and from insurer deception.” See Liberty Mut. Ins. Co. v. Treesdale, Inc., 418 F.3d 330, 344 (3d Cir.2005). Additionally, unreasonable expectations will never control, and any expectation that he would be insured for claims arising out of the marketing of unapproved products would surely have been an unreasonable one for Sprecher to hold.
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OPINION
PER CURIAM.
Julia Indriati, a native and citizen of Indonesia, petitions for review of an order of the Board of Immigration Appeals (BIA). We will deny the petition for review.
Indriati is Chinese and Catholic. Her home in Indonesia was attacked in 1974 when she was 18 years old. She did not see the attackers, but she heard them, and they attacked the furniture and took valuables from the house. She was also present during a similar attack on her home in May 1998, and similarly did not see the attackers, but heard what was occurring. In December 1999 a man grabbed her from behind, took her purse, took her Bible from it, threw it on the ground and stepped on it, saying it was “garbage.” He grabbed parts of her body and told her not to go to church. He left when some people came. She did not report the incident to police. She left Indonesia in February 2000 on a tourist visa because she did not feel safe.
The Immigration Judge (IJ) determined that her asylum claim was untimely and that no exceptions applied. The IJ determined that Indriati probably had a subjective fear of returning to Indonesia, but she did not find that the incidents Indriati experienced rose to the level of persecution. The IJ also found that Indriati had not established that there was anyone in Indonesia that sought to harm her if she should return, and thus denied withholding of removal. The IJ also found no evidence that Indriati would be tortured. The IJ granted voluntary departure.
The BIA agreed that Indriati’s asylum claim was untimely and agreed that the incidents she experienced in Indonesia either were not on a protected ground or did not rise to the level of persecution. The BIA also agreed that Indriati did not establish that she would be subject to torture in Indonesia. Indriati filed a timely petition for review.
We must first consider which of Indriati’s claims are properly before this Court for review. In most cases, we have jurisdiction to review a final order of removal involving the denial of asylum. 8 U.S.C. § 1252(a)(1). However, 8 U.S.C. § 1158(a)(3) provides that no court shall have jurisdiction to review any determination regarding the timeliness of an asylum *817application and the applicability of the exceptions. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). Although the subsequently enacted REAL ID Act amended the Immigration and Nationality Act to allow constitutional claims or questions of law to survive its jurisdiction-stripping provisions, see REAL . ID Act 106(a)(l)(A)(iii), 8 U.S.C. § 1252(a)(2)(D), Indriati has not raised any legal or constitutional claims regarding the IJ’s determination that her asylum claim was untimely. Because we lack jurisdiction to consider whether her asylum application was timely, our review is confined to consideration of whether the BIA properly affirmed the denial of withholding of removal.1
To be eligible for withholding of removal, Indriati must demonstrate that it is more likely than not that her life would be threatened in Indonesia on account of race, religion, nationality, membership in a particular social group, or political opinion. Tarrawally, 338 F.3d at 186; 8 U.S.C. § 1231(b)(3)(A). We may reverse the BIA’s decision only if the record would compel a reasonable factfinder to conclude that the requisite fear existed. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
In her brief, Indriati briefly mentions the incidents regarding the attacks on her home and her person that we note above. She then concludes that she “[cjlearly ... established that she had suffered persecution and if she were to return to Indonesia, she would continue to suffer persecution based on her race and religion.” Petitioner’s Brief at 7-8.2 While we agree that these incidents are troubling, the record does not compel the conelusion that they rise to the level of “persecution.” See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” and explaining that persecution “does not encompass all treatment that our society regards as unfair, unjust or even unlawful or unconstitutional”); Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir.2008) (observing that “harassment and discrimination do not constitute persecution”); Lie, 396 F.3d at 536 (holding that “two isolated criminal acts, perpetrated by unknown assailants, ... [are] not sufficiently severe to be considered persecution”). We will therefore deny the petition for review.
. Indriati’s brief contains no argument concerning relief under the Convention Against Torture; we thus deem the issue waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005).
. Indriati also argues that the BIA failed to reach the issue of whether she qualified for withholding of removal. We agree with the Government’s characterization of this argument as "specious.” Respondent’s Brief at 16, n. 5.
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OPINION
BARRY, Circuit Judge.
Plaintiff Municipal Revenue Services, Inc. (“MRS”), a Pennsylvania corporation that facilitates the purchase of delinquent municipal tax liens, appeals from the District Court’s grant of summary judgment in favor of Defendants John McBlain and Aldan Borough in this 42 U.S.C. § 1983 action. MRS also appeals from the Court’s partial grant of Defendants’ motion to dismiss.
At issue is whether MRS was deprived of “rights, privileges, or immunities secured by the Constitution and laws of the United States,” 42 U.S.C. § 1983, when McBlain, the Vice President of the Aldan Borough Council, called MRS’s business model “loan sharking with attorneys’ fees” at a local school board meeting. Because, absent exceptional circumstances not present here, we do “not ... view defamatory acts as constitutional violations,” Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 401 (3d Cir.2000), we will affirm.
I. Background
The William Penn School District (“District”) is a regional public school district located in Delaware County, Pennsylvania, comprised of six boroughs — Aldan, Colwyn, Darby, East Landsdowne, Landsdowne, and Yeadon. In early 2005, the District began exploring the possibility of selling its delinquent tax liens to generate additional revenue. According to the District’s chief operating officer, Joseph Otto, about twelve percent of the District’s residents do not pay their property taxes in a timely fashion, creating a yearly revenue shortfall of approximately three million dollars.
With the encouragement of at least one member of the nine-member William Penn School Board (“Board”), Otto invited three companies to give public presentations to the Board promoting their respective delinquent tax lien collection services. On July 14, 2005, MRS, Xspand, and the Portnoff Law Associates promoted their collection models, and, ultimately, Otto recommended MRS to the Board. In a memo dated October 13, 2005, Otto praised MRS’s approach as “much simpler” in that it would “not change the way the school district collects the delinquent taxes” and would allow the District to continue to “receive all taxes, interest, and penalties collected” less five percent in fees. (App. at 786.)1
At approximately the same time, in Delaware County, the City of Chester and the Chester Upland School District were finalizing a delinquent tax lien sale with Xspand. McBlain, who also served as the Delaware County solicitor, was tangentially involved in that sale, and was responsible for reviewing the terms of the sale for its potential impact on the Delaware County Tax Claim Bureau and its tax collection efforts. (Id. at 1476.) In that role, he issued an opinion letter endorsing the sale. *821Despite that endorsement, McBlain expressed his general opposition to delinquent tax lien sales to Linda Cartisano, who was the solicitor for the City of Chester.
McBlain, who wears a number of hats in Delaware County — serving, in addition to his other roles, as solicitor for the Delaware County Redevelopment Authority, the Delaware County Economic Development Oversight Board, and various local zoning boards — is also involved in local politics. He is the chairman of the Republicans for Aldan and the treasurer of the Delaware County Republican Executive Committee. In yet another role, he represented the Delaware County Board of Elections in a dispute regarding Charlotte Hummel, a Democratic candidate for reelection to the Board from Landsdowne. The dispute reached the Supreme Court of Pennsylvania, where Hummel ultimately prevailed on October 14, 2005. The relief granted allowed Hummel to reclaim her seat on the Board.
Hummel’s election dispute involved Raymond Santarelli, a lawyer at the firm of Elliot, Greenleaf & Siedzikowski, P.C. (“EGS”), who filed an amicus brief for the Delaware County Democratic Party in support of Hummel. EGS also specializes in the transactional legal work involved in the sale of municipal tax liens. In fact, MRS recommends the firm’s services to municipalities that require a special counsel for the intricacies of the sale. In MRS’s view, “there is only one firm [— EGS — ] that made the investment ... to be qualified to do” delinquent tax lien work. (Id. at 1067). In each delinquent tax lien sale involving MRS, EGS has been hired as the municipality’s special counsel. Here, the parties agree that EGS stood to eara fees from an agreement between MRS and the District.2
On October 24, 2005, the Board was set to vote on a “move forward resolution” regarding the delinquent tax lien sale, which stated that the Board “accepted] the recommendation of the administration [of the District] to sell all of ... [its] past real estate tax liens ... to ... MRS[ ],” and authorized the administration to take the necessary steps “to undertake the sale.” (Id. at 1590.) Otto, the Board members, and Howell (MRS’s founder) all viewed the resolution as a step toward further negotiation with MRS, rather than an approval of the sale itself. (See, e.g., id. at 969 (Otto stating that the resolution was simply the next step in “evaluating] the [MRS] proposal”); id. at 1079 (Howell describing it as “preliminary to a final approval”); id. at 1323 (Board member stating that “basically all the move forward resolution was meant to do was to tell the administration ... to start negotiating with [MRS].”).) Several days prior to the Board meeting, McBlain heard about what he believed to be the advanced state of the District’s negotiations with MRS.
Consequently, McBlain attended the October 24 Board meeting to express his opposition to the delinquent tax lien sale.3 He did so — as the parties agree — in his capacity as the Aldan Borough Council’s liaison to the Board. He voiced his concerns with the MRS deal generally, and the move forward resolution specifically, at the public “pre-session” to the Board meeting. Then, at the meeting, McBlain rose to speak during the time allotted for public comment. He stated, in relevant part:
*822I want to speak to you about ... a proposed resolution ... to move forward to sell certain tax claims. I ask you to vote against this proposed resolution tonight. This is nothing more than loan sharking with attorneys’ fees, that’s all it is....
Before moving forward, I would also ask the [B]oard to tell us what are the attorneys’ fees, how many attorneys will be representing the ... District and ... what other attorneys will be getting paid as a result of this, and who are those attorneys?
H* 5¡í Hi
You know once you get into [the structure of the deal and the fees included], now you’re talking loan sharking money. Loan sharking with attorneys’ fees is all this is.
(Id. at 831-32.) Board president John McKelligot heard McBlain’s comments, “sort of perked up, and ... thought, oh, another night of vigorous public comment in the William Penn School District.” (Id. at 1286.) Board member Diane Leahan had a different reaction, rising to respond to McBlain and stating: “[T]o turn around and call this company a loan shark is, in my opinion, trouncing on slander, and I think it’s a disgrace.” (Id. at 1283.)
McBlain’s comments had no discernable effect on the “move forward” resolution vote, which took place later in the meeting. Seven Board members voted in favor of the resolution, including Robert Reardon who was Aldan Borough’s representative on the Board. Only McKelligot voted against the resolution, and his undisputed deposition testimony indicates that he opposed selling delinquent tax liens from the outset.4
Despite the Board’s approval of the resolution, the business relationship between MRS and the District did not “move forward.” Otto was unresponsive to MRS’s continuing efforts to consummate the delinquent tax lien sale. In his words, the costs of the deal turned out to be “double ... what [he] thought they were,” (id. at 975), and the District’s administration lost interest. Another Board member, by contrast, simply “assumed that somebody had basically pulled the plug on something.” (Id. at 1397.) To date, the District has not entered into a delinquent tax lien sale agreement with MRS or any of its competitors.
MRS filed this action, alleging that McBlain’s comments and the subsequent loss of business constituted impermissible retaliation for protected First Amendment activity; that the treatment it received relative to its competitors violated equal protection; that the reputation and property damages it suffered ran afoul of substantive and procedural due process protections; and that McBlain’s comments amounted to commercial disparagement under Pennsylvania law. MRS also sought to recover against Aldan Borough, assertting a Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), claim that the Borough fostered a customary disregard of constitutional rights. The District Court partially granted Defendants’ Federal Rule of Civil Procedure 12(b)(6) motion, dismissing the substantive and procedural due process counts. The Court subsequently granted Defendants’ motion for summary judgment on the First Amendment retaliation, equal protection, and Monell counts, and dismissed MRS’s state claim without prejudice.
On appeal, MRS contends that summary judgment was improperly granted because the District Court’s analysis involved several errors of law. It also contends that it *823adequately pled both procedural and substantive due process violations.
II. Discussion
We have jurisdiction over a final order of the District Court pursuant to 28 U.S.C. § 1291, and “[o]ur standard of review of a grant of summary judgment is plenary.” Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008); see McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.2009) (“we review the facts in the light most favorable to the nonmoving party”). We similarly “exercise plenary review of the District Court’s order granting defendant’s motion to dismiss.” Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir.2008).
A. Qualified Immunity
McBlain contends that he is shielded from liability by qualified immunity, and it is through that prism that we will address the merits of MRS’s arguments. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). It reflects the “need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated a two-step qualified immunity analysis— first, whether “the facts alleged show that the [official’s] conduct violated a constitutional right,” and, second, whether the right, if violated, “was clearly established.” In Pearson, the Court backed away from the previously-mandated sequence, stating, “while the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory.” 129 S.Ct. at 818. We nonetheless begin by determining whether, given the facts in the record, MRS can establish a constitutional violation. Because it cannot, we need not proceed further.
B. First Amendment Retaliation
A public official “may not deny a benefit to a person on a basis that infringes his constitutionally protected ... interest in freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Otherwise, the official could indirectly “penalize and inhibit[ ]” the exercise of “constitutionally protected speech,” a result which he “could not command directly.” Id. (quotation marks and citation omitted). MRS contends that, in retaliation for its indirect association with the politically-active EGS law firm, McBlain used his local government post to disparage its business.5
“In general, constitutional retaliation claims are analyzed under a three-part test. Plaintiff must prove (1) that [it] engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir.2004). The threshold requirement, *824then, is that MRS must “identify the protected activity that allegedly spurred the retaliation.” Id. We question whether it has done so, as the protected activity to which MRS points is its “association with ... an attorney for the Democratic party.” (Appellants’ Br. at 32.) The parties do not address whether a business that recommends the services of a politically-active law firm has engaged in protected conduct, and the matter was likewise unaddressed by the District Court.
Instead, the District Court focused on whether MRS was retaliated against, and concluded that it was not. The Court construed MRS’s claim as if it were “a claim against the [Board] because MRS argues that ... McBlain wielded such influence over the [Board] that his criticizing MRS effectively” ended its chances of landing the delinquent tax lien sale contract. (App. at 17 n. 8.) Thus, the Court held that even if McBlain “stymied [MRS’s] effort to contract with the [District] for impermissible political reasons,” his actions would not constitute retaliation because MRS did not have “a pre-existing business relationship with the [District].” (Id. at 17.) See Bd. of County Comm’rs, Wabaunsee County v. Umbehr, 518 U.S. 668, 685-86, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (“recognizing] the right of independent government contractors not to be terminated for exercising their First Amendment rights” but expressly not addressing “the possibility of suits by bidders or applicants for new government contracts who cannot rely on” a “pre-existing commercial relationship with the government”); McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir.1999) (declining, in dicta, to extend Umbehr to allegations of retaliation absent a “preexisting commercial relationship with the public entity”).
MRS contends that the “retaliatory action was the attack by McBlain” at the October 24 Board meeting, “not the [Board’s] failure to award a contract,” and that this distinction allows it to establish a claim of retaliation. (Appellant’s Br. at 33.) Its contention fails. To amount to retaliation, the conduct must be “sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir.2006) (quotation marks and citation omitted). In certain circumstances, such as those of public employees, that threshold is quite low. See, e.g., O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir.2006) (“A First Amendment retaliation claim will lie for any individual act which meets this ‘deterrence threshold,’ and that threshold is very low: as we [have stated] ... a cause of action is supplied by all but truly de minimis violations”) (citation omitted); Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.2000) (holding that “a campaign of petty harassments” against a public employee is sufficient to establish retaliation) (quotation marks and citation omitted). Where, however, the alleged retaliatory act is a speech by a public official on a matter of public concern, other considerations are in play. See Suarez Corp. Indus, v. McGraw, 202 F.3d 676, 687 (4th Cir.2000); see also McKee, 436 F.3d at 170 (favorably citing Suarez). “Not only is there an interest in having public officials fulfill their duties, a public official’s own First Amendment speech rights are implicated.” Suarez, 202 F.3d at 687; see X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir.1999) (stating that the First Amendment “protects] the legislator’s right to state publicly his criticism of the granting of ... a contract to a given entity and to urge the administrators that such an award would contravene public policy”); Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1016 (D.C.Cir.1991) (“If the First Amendment were thought to be violated any time a private citizen’s speech or writings were criticized by a government *825official, those officials might be virtually immobilized.”). Similarly stated, a “limitation on the retaliation cause of action based on [a public official’s] speech is necessary to balance the [official’s] speech interests with the plaintiffs speech interests.” The Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 417 (4th Cir.2006).
“Thus, where a public official’s alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation intimating that punishment, sanction or adverse regulatory action will imminently follow, such speech does not adversely affect a [company’s] First Amendment rights, even if defamatory.” Suarez, 202 F.3d at 687 (emphasis added). Here, while MRS alleges that McBlain “exerted ‘pressure’ on the decisionmakers, there is no allegation that such ‘pressure’ took the form of anything other than speech.” X-Men Sec., 196 F.3d at 71. Perhaps McBlain over-spoke in expressing his opposition to the delinquent tax lien sale by equating MRS with a loan shark. His words, however, were “obviously used here in a loose, figurative sense, to demonstrate ... strong disagreement,” Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), and were part and parcel of what we have described as the “often treacherous waters of government contracting.” Boyanowski, 215 F.3d at 404; cf. Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (“even the most careless [listener] must have perceived that the [expression] was no more than rhetorical hyperbole”). Even assuming MRS can establish protected First Amendment activity, that activity is not a shield against criticism from public officials unless the criticism strays into “threats, intimidation or coercion.” See X-Men Sec., 196 F.3d at 71. McBlain’s comments did not reach that level, and they cannot form the basis of a First Amendment retaliation action.
C. Equal Protection
MRS also asserts that the District Court erred in granting summary judgment in favor of McBlain on its “class of one” equal protection claim. To recover, MRS must, “at the very least,” establish “that (1) the defendant treated [it] differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). “Persons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.2008) (quotation marks and citation omitted); see Safeguard Mut. Ins. Co. v. Miller, 472 F.2d 732, 733 (3d Cir.1973) (corporations are “deemed to be persons within the meaning of the [E]qual [Protection and [D]ue [P]rocess [Clauses of the [Fourteenth [A]mendment”). In MRS’s view, it was similarly situated to Xspand, a delinquent tax lien purchasing company that was treated differently by McBlain.
We note that on October 24, 2005, the Board was only voting on whether to “move forward” with a delinquent tax lien sale proposal put forth by MRS. Because Xspand did not have a proposal before the Board, McBlain’s failure to speak out against Xspand’s business model cannot be considered unequal treatment. MRS also asserts that McBlain’s approval of the City of Chester and Chester Upland School District delinquent tax lien sale constituted unequal treatment. The District Court properly concluded otherwise, explaining, first, that “there is no evidence that ... McBlain personally supported the Chester/Xspand agreement or that he took any *826action, beyond what was required of him as solicitor of Delaware County to advance the transaction.” (App. at 13.) Second, the Court accurately described why MRS’s dealings with the Board and Xspand’s dealings with Chester were not “alike in all relevant aspects”:
McBlain was neither the elected representative nor attorney for any party with a stake in the success of the Chester/Xspand agreement. In contrast, the [Board] resolution directly impacted ... McBlain’s constituents on a budgetary matter of concern to him as [an] elected official. Accordingly ... McBlain’s treatment of Xspand in the Chester transaction cannot be compared to his treatment of MRS’ proposal to the [Board]....
{Id. at 13.)
D. Procedural & Substantive Due Process
The District Court’s dismissal of MRS’s substantive and procedural due process claims was likewise proper, as MRS did not allege a protected interest. “To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures available to him did not provide ‘due process of law.’ ” Hill, 455 F.3d at 233-34 (citation omitted). MRS argues that McBlain’s actions deprived it of its “constitutionally protected [property] right to continued business.” (Appellant’s Br. at 48.) It is, however, quite clear that the possibility of a future contract with a municipality is not a property interest that warrants procedural due process protection. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”); Indep. Enter., Inc. v. Pittsburgh Water & Sewer Auth., Inc., 103 F.3d 1165, 1178 (3d Cir.1997) (“[0]ne who bids on a public contract has no legitimate expectation of receiving it until the contract is actually awarded.”). MRS also cannot establish a protected liberty interest, as “[b]y now, it is clear that reputation alone is not an interest protected by the Due Process Clause.” Dee v. Borough of Dunmore, 549 F.3d 225, 234-35 (3d Cir.2008) (emphasis in original) (quotation marks and citations omitted). Instead, “to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest,” id. (emphasis in original) (quotation marks and citations omitted), and the loss of a business opportunity is insufficient to establish the latter “plus” requirement. See Sturm v. Clark, 835 F.2d 1009, 1012-13 (3d Cir.1987) (“[Financial harm resulting from government defamation alone is insufficient to transform a reputation interest into a liberty interest” because “[m]ost, if not all, charges of defamation are inevitably accompanied by financial loss.”).
Nor can MRS establish a fundamental property or liberty interest worthy of substantive due process protection. See Nicholas v. Penn. State Univ., 227 F.3d 133, 142 (3d Cir.2000). The ability to compete for municipal contracts is not a fundamental property interest, Independent Enterprises, 103 F.3d at 1180, and “defamatory statements that curtail a plaintiffs business opportunities [do not] suffice to support a substantive due process claim.” Boyanowski, 215 F.3d at 400. *827Thus, even if we were to accept for the sake of argument that McBlaine’s remarks were defamatory, MRS’s due process arguments fail.
E. Monell
Finally, the District Court properly concluded that there is no genuine issue of material fact as to whether MRS can establish that “through its deliberate conduct, [Aldan Borough] was the ‘moving force’ behind the [constitutional] injuries] alleged.” Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (emphasis in original). “For § 1983 liability to attach, [MRS] must show that the [Borough] was responsible for any constitutional violations.” Startzell, 533 F.3d at 204; see id. (“/FJor there to be municipal liability, there ... must be a violation of [MRS’s] constitutional rights.”) (quotation marks and citations omitted). Because MRS’s rights were not violated, we need not further address the claim against Aldan Borough — “[i]t too was properly dismissed.” Id.6
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s orders of March 20, 2007, 2007 WL 879004, and August 4, 2008, 2008 WL 2973852, which, taken together, dispose of MRS’s claims against McBlain and Aldan Borough.
. The primary attraction of the potential delinquent tax lien sale was the prospect of an up-front payment. MRS proposed to pay the District ninety percent of the value of delinquent tax liens that had been outstanding for four years or less in one lump-sum. Xspand, by contrast, “would purchase the delinquent [tax liens only] after [it] performed a comprehensive review of all outstanding delinquent properties,” and its initial review indicated that its up-front payment would be calculated only on the basis of liens that had been outstanding for three years or less. (Id. at 785.)
Portnoff was interested only in the prospective collection of delinquent tax liens. Accordingly, the firm did not offer an up-front payment, and its proposal was not seriously considered.
. EGS represents MRS in the present case.
. On the same day, the City of Chester and the Chester Upland School District’s delinquent tax lien sale agreement was finalized with Xspand. MRS contends, but the record does not establish, that Xspand is financially allied with McBlain's partisan interests.
. Board member Dorothy Reed was absent. (App. at 1613.)
. We need not address whether a corporation, like MRS, is entitled to the same protection as a private individual against First Amendment retaliation, as the parties have not briefed the issue and it does not affect our holding. We note, however, that there is no doubt that MRS may assert constitutional claims on its own behalf. See, e.g., Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 407 n. 6 (3d Cir.2005) (collecting cases).
. MRS also contends that its discovery of McBlain's telephone records was improperly limited to three months before and three months after the October 24 Board meeting. We note that "questions concerning the scope of discovery are among those matters which should be almost exclusively committed to the sound discretion of the [District [C]ourt, and we see no reason to disturb the [C]ourt’s discovery ruling here." Molthan v. Temple Univ., 778 F.2d 955, 958 (3d Cir.1985) (quotation marks and citations omitted).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472668/
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OPINION
McKEE, Circuit Judge.
Dwight A. Penberth appeals the district court’s order1 granting the defendants’ motion for summary judgment on his 42 U.S.C. § 1983 claims. Penberth alleged that the Borough of Lansford and its May- or and Chief of Police, violated his rights under the First and Fourth Amendments to the Constitution by interfering with his right of association and by unlawfully seizing his person and property. For the reasons that follow, we will affirm the decision of the district court.
I.
Because we write primarily for the parties, we will recite only as much of the facts and history of this case as is necessary for our decision.2
*829Penberth alleges violations of 42 U.S.C. § 1983 and other state law claims. His claims under § 1983 include malicious prosecution and improper seizure of his property in violation of the Fourth Amendment, and that defendants’ actions violated his First Amendment right to association by interfering with his relationship with his father. Our standard of review is plenary. Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir.2007).
II.
As the district court explained, in order to maintain a malicious prosecution claim under the Fourth Amendment, Penberth must show: (1) the defendant initiated a criminal proceeding; (2) that proceeding ended in Penberth’s favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing Penberth to justice; and (5) Pen-berth suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Johnson, 477 F.3d at 82-83 (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.2003)). Here, defendants did initiate a criminal proceeding that ended in Pen-berth’s favor. However, the parties dispute the existence of probable cause. The district court did not reach that issue because it decided that Penberth did not present facts sufficient to show that he suffered a deprivation of liberty consistent with the concept of seizure. We agree.
We have held that where a defendant was required “to post a $10,000 bond, ... to attend all court hearings[,] ... to contact Pretrial Services on a weekly basis ..., and ... was prohibited from traveling outside New Jersey and Pennsylvania ... [although it is a close question, ... these restrictions amounted to a seizure.” Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir.1998). However, we have also held that where plaintiffs “were only issued a summons; ... were never arrested; ... never posted bail; ... were free to travel; and ... did not have to report to Pretrial Services” they were not subject to a “seizure” within the meaning of the Fourth Amendment. DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir.2005).
Penberth was detained for 35 to 40 minutes. “[H]e did not have to post bail [or] communicate with pre-trial services, and he had no travel or geographic restraints placed on him.” Penberth v. Krajnak, No. 06 Civ. 1023, 2008 WL 509174, * 18 (M.D.Pa. Feb. 21, 2008). As we stated in DiBella, “[i]f Gallo was a ‘close question;’ here there could be no seizure significant enough to constitute a Fourth Amendment violation in support of a Section 1983 malicious prosecution action.” 407 F.3d at 603.
The requirement of a constitutional harm applies equally with respect to all defendants. Accordingly, we will affirm the district court’s grant of summary judgment with respect to Penberth’s § 1983 claim for unlawful seizure of his person against all defendants.
III.
There is scant support for Penberth’s claim that he alleged facts sufficient to sustain a § 1983 claim for seizure of his car or the police equipment in the car in violation of the Fourth Amendment. He argues that: “through the arrest, Defendants secured what they could not have secured in civil court — a return of property lawfully sold and belonging to Plaintiff.” Appellant Br. at 18. Defendants argue that Penberth waived this claim because he failed to plead it in his complaint.
Whether or not Penberth preserved this claim, the undisputed evidence “shows only that, as part of the agreement *830to withdraw the charges against Plaintiff, Plaintiff was required to bring his car to Krajcirik’s Garage on October 7, 2005 so that the police equipment could be removed from it.” Penberth, 2008 WL 509174 at * 18. Penberth voluntarily brought the car to the agreed upon location and surrendered the equipment. Moreover, Penberth does not argue that the police equipment stripped from the police car somehow belonged to him. Nor does Penberth seek return of those items. Accordingly, we will affirm the district court’s dismissal of Penberth’s § 1983 claim for seizure of his property in violation of his Fourth Amendment rights.
IV.
Finally, Penberth attempts to materialize a claim under § 1983 by arguing that defendants interfered with his relationship with his father in violation of his First Amendment right “to enter into and maintain certain intimate human relationships.” Doe v. City of Butler, 892 F.2d 315, 323 (3d Cir.1989) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 617, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). Specifically, he alleges that defendants brought charges against him and inflated those charges in order to cause a rift between him and his father. The district court held that plaintiff failed to produce evidence showing how defendants actions interfered with his relationship with his father. Penberth, 2008 WL 509174 at * 23. We agree; in fact, the argument is strained at best.
To morph his allegations into a claim under the First Amendment, the record must contain sufficient evidence that state action “directly and substantially” interfered with Penberth’s relationship -with his father. See Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). Although Penberth discusses defendants’ intent to embarrass his father, there is nothing on this record that would raise a material issue of fact about any interference whatsoever with that relationship. Moreover, the Supreme Court has upheld policies with a far more obvious and significant impact on familial ties than appears on this record. See Lyng, 477 U.S. at 638, 106 S.Ct. 2727 (holding that law lowering food stamp allotments for certain family members living together below levels they would have received if they lived separately or were unrelated does not directly and substantially burden the right to association); see also Califano v. Jobst, 434 U.S. 47, 58, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977) (upholding termination of Social Security benefits for a disabled dependent child who marries someone ineligible for benefits). Accordingly, we will affirm the district court’s dismissal of Penberth’s § 1983 claim for interference with his right to association in violation of his First Amendment rights.
V.
For the above reasons, we will affirm the order of the district court.
. Pursuant to 28 U.S.C. § 636(c), the parties consented to having Magistrate Judge Thomas M. Blewitt decide this motion. As Magistrate Judge Blewitt's order has the power and effeet of an order of a district court, we will refer to it accordingly herein.
. We will refer to the plaintiff as Penberth and his father as Penberth, Sr.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472672/
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OPINION
AMBRO, Circuit Judge.
John Anthony Gonzalez, Jr.,1 appeals the order of the District Court denying his motion to suppress physical evidence. He claims the Court erred by refusing to suppress evidence in light of two alleged deficiencies in the affidavit supporting the search warrant: (1) a lack of sufficient statements addressing the reliability of a dog sniff; and (2) statements in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). For the reasons below, we affirm the order of the District Court denying the motion to suppress.
I. Facts
On July 4, 2006, Philadelphia Police Officer Richard Martinez received information from an informant that large quantities of cocaine were being stored in locker J0819 at the Public Storage facility at 2700 Grant Avenue in Philadelphia. The informant provided detailed information about the packaging of the cocaine, stating that there were kilogram bricks inside two or more dark colored duffle bags stored inside the locker. The source stated that some kilograms were wrapped in tan color tape and others in foil. We note that these are details that can only be verified after execution of a search warrant. The informant also provided information regarding the purported owners of the cocaine. The source informed Officer Martinez that two Hispanic males, identified as David Rivera and Johnny Versace, were coming from Florida the next day to move the cocaine out of the storage locker to an unknown location. Officer Martinez shared his notes with the officer who eventually drafted the search warrant for the locker, Officer Brian Myers.
In response to this information, Officer Myers and others went to the Public Storage facility later that day. There, they verified the existence of a locker J0819, and upon talking to the employee on duty, learned that it had been rented by an individual using the name Daniel Rivera. This Daniel Rivera used an address in Fort Lauderdale, Florida. The officers also brought with them a photograph of a David Rivera fitting the description of the David Rivera identified by the informant. The employee, who apparently was new *836and the only one on duty, did not recognize the individual in the photograph.
At the request of the officers on site, Officer Dispasquale and her trained drug detection dog, Tre, came to the storage facility and was exposed to locker J0819. Officer Dispasquale then notified Officer Myers that Tre “had a positive indication on storage locker J0819 for narcotics.” J.A. 96-97. Officer Myers returned to headquarters and prepared a search and seizure warrant for that locker. The affidavit, in its entirety, is reproduced below:
On 7-4-06 your affiant P/O Myers# 6657 received information from P/O Martinez # 1718. P/O Martinez stated that a source of information contacted the officer and stated that the Public Storage at 2700 Grant Ave. storage locker # J0819 within the last 24 hours is being used to store kilos of cocaine. The source stated that the kilos are inside a dark colored duffle bag. Some kilos are wrapped a tan color tape and some kilos are wrapped in foil. The source stated that there are 2 or more duffle bags inside the storage locker. The source stated that a H/M named Daniel Rivera along with another H/M named Johnny Versace were coming from Florida on 7-5-06 to move the kilos to an unknown location. P/O Myers and Cpl. Judge # 8027 then went to the employee at the Public Storage at 2700 Grant Ave. The employee confirmed that Daniel Rivera with an address of 925 SW 30th St. Ft. Lauder-dale, Florida was renting the storage locker. At this time Cpl. Judge then had K9 come to the Public Storage at 2700 Grant Ave. storage locker # J0819. P/O Dispasquale # 6742 and TRE # K549 arrived on location. TRE indicated POSITIVE on the door of the storage locker # J0819. P/O White # 4296 has a surveillance of the storage locker.
J.A. 48 (emphasis in original). There was no mention of the name “David Rivera,” and no mention of the attempt at a photo identification. This affidavit was presented to a Philadelphia County bail commissioner, and the search warrant was granted. That same evening, still July 4, officers returned to the locker and carried out the search warrant. They found 47.83 kilograms of cocaine inside the locker, packaged in duffle bags.
Gonzalez was later charged in a federal indictment with one count of possession with intent to distribute under 21 U.S.C. § 841(a)(1). He moved to suppress the evidence and also sought a hearing pursuant to Franks. The District Court held a hearing on Gonzalez’s motion.
At the hearing, Officer Myers testified that he had “mistakenly” switched the two similar names of “David” and “Daniel” when drafting the affidavit because the Public Storage employee used the name “Daniel,” as per the account record there. As to the failed identification by the Public Storage employee, Myers testified that he failed to include this information in the affidavit because the employee was new. He stated that he did ask to speak to another employee but there was no one else on duty because of the holiday. Myers testified that he had used dog sniffs over 50 times, but he did not have or attempt to acquire any information about the training of Tre, the canine, or Officer Dispasquale, the canine handler.
After the hearing, the District Court denied Gonzalez’s motion. It specifically rejected the Franks challenge and also declined to adopt a rule requiring the police to substantiate the dog’s reliability, training, and experience in the affidavit. Gonzalez later pled guilty to the indictment, reserving the right to appeal the District Court’s denial of the motion to *837suppress physical evidence. After sentencing, he filed a timely appeal.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
In evaluating the District Court’s denial of the motion to suppress, we review for clear error as to the underlying facts, but exercise plenary review over the application of law to properly found facts. United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998) (citing United States v. Inigo, 925 F.2d 641, 656 (3d Cir.1991)). However, this does not mean that we are to second-guess a magistrate’s determination of sufficient evidence to support a finding of probable cause. In particular, the Supreme Court has recognized that affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation, and thus after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A magistrate’s determination of probable cause should be paid great deference by reviewing courts. Id. (citing Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)).
We can affirm the denial of the suppression motion on any ground supported by the record. United States v. Agnew, 407 F.3d 193, 196 (3d Cir.2005). We apply the same deferential standard of review as the District Court to the issuing judicial officer’s decision to authorize the search and consider whether the judicial officer had a “substantial basis” for concluding that probable cause existed. United States v. Conley, 4 F.3d 1200, 1205 (3d Cir.1993) (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317).
III. Analysis
Gonzalez raises two interrelated claims. First, he claims that the lack of specific reliability statements in the affidavit concerning the dog sniff renders the sniff “meaningless” in the probable cause analysis. Second, he claims that the affidavit submitted in support of the application for a warrant was recklessly produced with erroneous assertions and omissions in violation of Franks. Because both claims ultimately go to the finding of probable cause, we will handle the claims in the following sequence: (1) the extent to which a dog’s training must be in the affidavit supporting an application for a warrant; (2) the first step of the Franks inquiry to determine what should have gone into the affidavit; and (3) whether the affidavit, as modified, provides a substantial basis for a finding of probable cause. We conclude that the District Court had a substantial basis for a finding of probable cause notwithstanding Gonzalez’s claims, and thus there is no need to consider the good faith exception under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Thus, we affirm the District Court’s order denying the motion to suppress.
A. Dog sniff
Gonzalez urges us to hold that, absent specific facts in the warrant establishing a dog’s reliability, we cannot consider a positive dog sniff as part of the “substantial basis” for probable cause. We have never created such a rule, and decline to adopt one at this time. In addition, we need not decide whether such a rule would be appropriate where the sole fact leading to probable cause is the dog sniff. In this case, there was a tip that there were drugs in the locker where the canine alerted, and other facts in the probable cause assessment were corroborated.
*838The affidavit in support of the search warrant stated that Officer Dispasquale, identified by badge number, brought a member of the police’s K9 unit, Tre, identified by K-number, to the facility. Tre indicated positive when exposed to the door of storage locker J0819. This corroborated the initial tip that there were drugs in the locker.
The purpose of the warrant requirement is not to deprive completely the Government of reasonable inferences, but only that they not be made by officers caught up in the heat of the investigation. The bail commissioner is entitled to make all reasonable inferences when reviewing an affidavit for a “substantial basis” to find probable cause. See Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”). It thus was reasonable for the bail commissioner to infer that Tre, as a member of the K9 unit, had the training and reliability required to detect narcotics.2 Thus, when the dog sniff is not the only element of probable cause, it is sufficient to identify the police canine by name and identification number, along with its handler by badge number.
We distinguish the case of United States v. Massac, 867 F.2d 174 (3d Cir.1989), because it did not address the issue of probable cause for a warrant. In that case, the question was whether an alert given by a trained and reliable dog, in conjunction with other known circumstances, provided probable cause to arrest the defendant without a warrant. Id. at 176. Furthermore, in Massac the training and reliability requirements were established after the fact. The dog was described as “ ‘K-9 Thor,’ a specially trained drug-sniffing dog.” Id. at 175. Because it was after the fact, the District Court in Massac was able to assess the canine’s specific behavior in finding the narcotics and conclude that the particular dog met the training and reliability requirements.
In the context of drug-tainted money, we have required some showing of reliability and training. United States v. $10,700.00 in U.S. Currency, 258 F.3d 215 (3d Cir.2001), concerned the probable cause necessary to sustain a forfeiture of suspected drug money, not about affidavits in support of search warrants. The hearing was held after the seizure, and we concluded that the Government needed to present some evidence concerning the particular dog’s training and accuracy in detecting narcotics on currency. Id. at 230. We noted that the key issue was whether the dog sniff would carry probative value in determining whether there was probable cause to tie the currency to a drug crime, justifying seizure. Id. We did not specifically confront a magistrate’s ability to make reasonable inferences about the dog’s training. A similar scenario arose in United States v. Carr, 25 F.3d 1194 (3d Cir.1994). There we upheld a conviction based upon the seizure of currency after a “trained” dog alerted. Id. at 1202 n. 3. *839Again, there was no warrant involved requiring a magistrate’s reasonable inferences, and more importantly, there was no elaboration on the training in the record aside from the conclusory statement that the dog was “trained.”
While other circuit courts have required more, at this time we do not see a need to adopt such a rule. See, e.g., United States v. Lopez, 380 F.3d 538, 544 n. 4 (1st Cir.2004) (finding probable cause based upon showing of dog’s reliability at suppression hearing); United States v. Sanchez-Pena, 336 F.3d 431, 444 & n. 62 (5th Cir.2003) (same); United States v. Sundby, 186 F.3d 873, 876 (8th Cir.1999) (“To establish a dog’s reliability, the affidavit need only state the dog has been trained and certified to detect drugs.”); United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir.1993) (“A canine sniff alone can supply the probable cause necessary for issuing a search warrant if the application for the warrant establishes the dog’s reliability.”). While requiring a more detailed statement of training and reliability in the affidavit would facilitate the drawing of inferences by a neutral magistrate, the absence of such a statement does not preclude it. Furthermore, insofar as the concern is a lack of reliability or training, the affiant is obligated under Franks to disclose those concerns. Thus, the information concerning the dog sniff is properly in the affidavit, and may be considered by the bail commissioner to make a reasonable inference concerning the existence of probable cause.
B. Franks inquiry
Under Franks v. Delaware, a defendant is entitled to a hearing if he can make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and that the allegedly false statement is necessary to the finding of probable cause. 438 U.S. at 155-56, 98 S.Ct. 2674. To prevail, the defendant must demonstrate that what is false was either intentional or with reckless disregard by a preponderance of the evidence, and he must also demonstrate that, with the false material corrected, the affidavit’s content is insufficient to establish probable cause. Id.; United States v. Yusuf, 461 F.3d 374, 383 (3d Cir.2006). In such a case, the search warrant is voided and the fruits suppressed. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674.
Gonzalez argues that two portions of the affidavit are subject to modification under Franks: (1) the mistaken use of “Daniel” instead of “David” concerning the tip; and (2) the omission of the attempt to get photo identification from the Public Storage employee. We distinguish between assertions and omissions for purposes of the Franks inquiry. Yusuf, 461 F.3d at 383.
For an assertion, even minor details can be stated with reckless disregard for the truth. Recklessness is measured not by the relevance of the information, but by the demonstration of willingness to distort truth affirmatively. Wilson v. Russo, 212 F.3d 781, 788 (3d Cir.2000). An assertion is made with reckless disregard for the truth when the affiant must have entertained serious doubts as to the truth of his statement or had obvious reasons to doubt the accuracy of the information he reported. Id. For an omission, we are concerned about giving neutral and detached magistrates the ability to draw reasonable inferences in order to avoid giving police the power to make unilateral decisions on the materiality of information. Id. at 787. An omission is made if an affiant withholds a fact within his knowledge that “any reasonable person would have known that this was the kind of thing the magistrate would *840wish to know.” Id. at 788 (citation omitted).
1. Incorrect assertion of facts
The tip received by Officer Martinez and relayed to Officer Myers concerned two males: Johnny Versace and David Rivera. Myers located a photo of a David Rivera matching the description supplied by the tipster. He asked the Public Storage employee if he recognized the man in the photo. Yet, when the affidavit was written and shown to the bail commissioner, it referred to a Daniel Rivera, not David Rivera. Daniel Rivera was the name on locker J0819, but it was not the name relayed by the tip.
At the Franks hearing, Officer Myers testified that the name Officer Martinez gave him was David Rivera, and that the reference to Daniel Rivera in the affidavit was a mistake. The District Court concluded that the “error in the first name between David and Daniel is not fatal” because the “reference to ‘Daniel’ in the affidavit was a mistake,” not a deliberate misstatement rendering the warrant invalid. In so doing, the District Court credited Officer Myers’s testimony.3
Applying the standard of entertaining serious doubts as to the truth of the statement or having obvious reasons to doubt the accuracy of the information reported, it is likely that Officer Myers did not have obvious reasons to doubt the accuracy and made an innocent mistake of transposing two similar names. We need not decide this matter, however, because (as discussed below) even if it meets the standard of “reckless disregard for the truth,” the remedy is merely to correct the affidavit and substitute the name “David” for “Daniel” in the first instance. We believe there would still be a substantial basis for concluding that probable cause existed to search the locker.
2. Omission of facts
While Officer Myers failed in his attempt to secure an identification from employees at Public Storage, he did not include this information in his affidavit. At the hearing, he testified that the sole employee who looked at the photo was new. He furthered testified that there were no other employees available that day.
It is clear that a lack of positive photo identification is a fact that any reasonable person would know the bail commissioner wanted. Identifications and failed identifications can be highly relevant to a probable cause determination. It is also the case, however, that Officer Myers noted the fact that the employee was new. See United States v. Frost, 999 F.2d 737, 743 (3d Cir.1993) (considering both the omission and the officer’s explanation of why it was believed to be a neutral fact for the second step of the Franks inquiry). Because we take into account whether this was “a scheme to deceive the [bail commissioner] about a material fact” or “a desire to withhold a fact not material to the [bail commissioner]’s task,” we can properly consider the effect of the employee’s tenure on the materiality of the omission as well because it indicates that the omission was of a neutral fact. See id. at 743 n. 3 (citing United States v. Calisto, 838 F.2d 711, 715 (3d Cir.1988)).
*8413. Remedy
When reviewing the evidence for a “substantial basis,” we will assume without deciding that we must correct the assertion, replacing the first instance of “Daniel” with “David.” Additionally, we will correct the omission and consider the fact that an employee did not recognize the picture of a David Rivera, but we also take note of the fact that the employee was new to the storage facility.
C. Probable cause
We now review the affidavit in support of the search warrant to determine whether there was a “substantial basis” for the bail commissioner’s finding of probable cause. In Illinois v. Gates, the Supreme Court reaffirmed the totality-of-the-cireumstances analysis that traditionally has informed probable cause determinations. Gates, 462 U.S. at 238-29,-103 S.Ct. 2317. The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. The duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis” for concluding that probable cause existed. Id. Additionally, the Supreme Court has recognized there is much value to the corroboration of details of an informant’s tip by independent police work, and this corroboration can also provide a substantial basis. Id. at 242, 103 S.Ct. 2317.
Gates cited approvingly to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), on the issue of corroboration. There, an informant reported that Draper would arrive in Denver on a train from Chicago on one of two days, and that he would be carrying a quantity of heroin. The informant also supplied a fairly detailed physical description of Draper, including a prediction that he would be wearing a light colored raincoat, brown slacks, and black shoes, and would be walking “real fast.” Police corroborated this information when they observed a man matching this description get off a train arriving from Chicago, walking rapidly while wearing attire matching the tip. Even though these were all facts consistent with innocent activity, the Supreme Court found this to be sufficient corroboration to justify a finding of probable cause because the sole material fact remaining to be verified was the presence of heroin. See Gates, 462 U.S. at 242-43, 103 S.Ct. 2317 (citing Draper, 358 U.S. at 309, 313-14, 79 S.Ct. 329). '
In this case, we find a similar set of corroborated facts when we consider the affidavit, including the Franks corrections. An informant notified police of a storage unit at Public Storage in Philadelphia that contained a large quantity of drugs in a specific locker, number J0819. He told officers that there were two males, one by the name of David Rivera, coming from Florida to retrieve the contraband the next day. They went to Public Storage with a photo of a David Rivera. There, they spoke with an employee, who informed them that a Daniel Rivera was renting the unit. The address of record was one from the State of Florida. When the employee was shown the photo of David Rivera, he could not make an identification. This employee, however, was new, and was the only one on duty at the time. Officers called a canine unit, and a trained dog, identified by number, and his handler arrived at the scene. When the dog was by locker J0819, he indicated positive for the presence of drugs.
These are the relevant facts that would have been before the bail commissioner but for the alleged Franks error. Like *842Draper, there were specific, corroborable facts provided that were consistent with innocent activity. The specific storage locker J0819 at the specific Public Storage was registered to a name very similar to the name given by the informant. Moreover, the address of record for the locker was in Florida, the very State where the informant claimed the two men would be coming from. Going further than Draper and well beyond innocent facts, there was an indication that there were drugs present, namely, the positive dog sniff at the locker in question. Thus, under Gates and Draper, there was certainly a “substantial basis” for concluding that probable cause existed, even taking the Franks issues into consideration.
* * * * * *
Because the affidavit in support of the warrant, taking into account all of the alleged defects, provided a substantial basis for concluding that probable cause existed, we affirm the decision of the District Court.
. While docketed as “Gonzalez,” all of Appellant’s moving papers use "Gonzales.” We will use the name as docketed.
. This is not to say that a defendant would be without remedy if the dog was, in fact, unreliable or had no track record of reliability. In such a case, an affidavit that did not disclose known facts, thus calling the dog's reliability into question, would be subject to analysis under Franks for a material omission. This could result in suppression of the evidence seized because the bail commissioner would have wanted to know that information before deciding which inferences were reasonable to make.
. We note that the similarity between the names “David” and “Daniel” was sufficiently confusing so as to result in an error in the District Court's own order regarding the Franks issue. The District Court mistakenly transposed “David” and “Daniel” in the following sentence: "Defendant's brief makes mention of the fact that the affidavit for the search warrant refers to a Daniel Rivera, whereas the name of the individual renting the locker was David Rivera, but the name of the defendant is Daniel Rivera.” The name of the person renting the locker was Daniel Rivera, but the person whom Officer Myers was tipped to was David Rivera.
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OPINION
PER CURIAM.
Philip Johnson sued the City of New York, agencies of the City of New York, including the New York Administration for Children’s Services (“ACS”), and ACS case workers. He brought claims under 42 U.S.C. §§ 1983, 1985(3), and 1986, alleging that the defendants violated his rights when ACS conducted emergency removals of his children from his home in June 2002 and March 2004 based on allegations of abuse and neglect.
Some of the defendants filed a motion to dismiss the complaint, arguing, inter alia, that the complaint was barred by the doctrines of res judicata and Rooker-Feldman.1 After reviewing Johnson’s complaint against the previous actions he filed in federal court in New York Johnson v. Queens Admin, for Children’s Sens., No. 02-cv-04497, 2006 WL 229905 (E.D.N.Y. Jan.31, 2006) (“Johnson I ”) and Johnson v. New York, No. 04-cv-01070, 2007 WL 764514 (E.D.N.Y. Mar.9, 2007) (“Johnson II ”), the District Court dismissed the complaint against all the defendants on res judicata grounds. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir.1992) (holding that a res judicata defense may be raised in a motion to dismiss when the defense is apparent on review of court records of which a court can take notice). The District Court also concluded that the Rook-er-Feldman doctrine barred review to the extent that Johnson challenged issues already adjudicated in state court. Johnson appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s decision. See Venuto v. Witco Corp., 117 F.3d 754, 758 & n. 5 (3d Cir.1997) (“Our review of the district court’s application of res judicata rules ... is plenary.”); Turner v. Crawford Square Apts. III, L.P., 449 F.3d 542, 547 (3d Cir.2006) (“Our review of the district court’s application of the Rooker-Feldman doctrine is plenary.”)
On review, we conclude that the District Court properly dismissed Johnson’s com*852plaint. To determine the preclusive effects of a prior judgment, we look to the law of the issuing court. See Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 145 (3d Cir.1999). The issuing courts were federal courts (sitting within the Second Circuit), where, to prevail on the defense of res judicata, a litigant must show “that 1) the previous action involved an adjudication on the merits; 2) the previous action involved the plaintiffs or those in privity with them; [and] 3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 285 (2d Cir.2000); see also United States v. Athlone Industries, Inc., 746 F.2d 977, 983 (3d Cir.1984). In this case, the defendants satisfied their burden.
Johnson raised claims relating to the emergency removal of the children in June 2002 in Johnson I. The claims were adjudicated on the merits, with the district court granting summary judgment in favor of the defendants. In Johnson II, Johnson litigated claims relating to the emergency removal of his children in March 2004. The distinct court, granting summary judgment in that case, adjudicated those claims on the merits. As the District Court concluded in this case, the claims Johnson raises in his complaint in this action were or could have been raised in his earlier lawsuits. Accordingly, they are barred by the doctrine of res judicata.
Furthermore, as the District Court determined, to the extent that Johnson actually seeks review of decisions rendered by the Queens County Family Court, the Rooker-Feldman doctrine bars review. See Turner, 449 F.3d at 547 (discussing the contours of the Rooker-Feldman doctrine).
For these reasons, we "will affirm the District Court’s decision.
. The doctrine derived from Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
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OPINION
SLOVITER, Circuit Judge.
Appellant Rodrigo Sanchez-Gonzalez (“Gonzalez”) was convicted of one count of conspiracy to distribute cocaine and one count of distributing or aiding and abetting the distribution of cocaine in violation of 21 U.S.C. §§ 846, 841 and 18 U.S.C. § 2, respectively. The District Court vacated the original sentence and, following a resentencing hearing, found that Gonzalez was responsible for distributing more than 150 kilograms of cocaine. The Court concluded that Gonzalez had an Offense Level of 38 and assigned him to Criminal History Category III. Gonzalez was sentenced to 292 months imprisonment and ten years supervised release.
*854Gonzalez appeals, alleging the District Court erred in finding him responsible for distributing more than 150 kilograms of cocaine and in failing to reduce his offense level for acceptance of responsibility.1 Specifically, Gonzalez argues that the facts in the PSR show only 145 kilograms of cocaine can be attributed to him, giving him an Offense Level of 36 instead of 38. He also maintains that his Offense Level should have been reduced by an additional two levels for acceptance of responsibility.
We review the District Court’s application of the Sentencing Guidelines for abuse of discretion. United States v. Tupone, 442 F.3d 145, 149 (3d Cir.2006) (citing Buford v. United States, 532 U.S. 59, 63-66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001)). In reviewing the amount of cocaine attributable to Gonzalez, it is important to note that he was convicted of conspiracy. The Sentencing Guidelines provide that Relevant Conduct within a conspiracy includes “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, [or] in preparation of that offense....” U.S.S.G. lB1.3(a)(1)(B). We have interpreted this language to “indicate[ ] that whether a particular defendant may be held accountable for amounts of drugs involved in transactions conducted by a co-conspirator depends upon the degree of the defendant’s involvement in the conspiracy and, of course, reasonable foreseeability with respect to the conduct of others within the conspiracy.” United States v. Collado, 975 F.2d 985, 992 (3d Cir.1992).
There was evidence that Gonzalez was associated with Colombians who supplied the conspiracy with cocaine through co-conspirator Jorge Elie Garcia during the period charged in the indictment, 1997 through mid-1998. Edgar Lozano, a drug dealer, testified that he purchased his cocaine from Garcia. One of Lozano’s customers estimated that he bought more than eighty kilograms from Lozano. There was testimony of another forty kilograms attributable directly to Gonzalez through Garcia. Moreover, Garcia was paged to receive 100 additional kilograms in August 1998. Garcia’s conduct was reasonably foreseeable in light of Gonzalez’s involvement in the enterprise. There was ample testimony to support the District Court’s finding of more than 150 kilograms of cocaine.
Moreover, Gonzalez served as an enforcer. As the District Court noted to counsel, Gonzalez “was given the collection assignment,” and asked, “wasn’t he very much a part of this organization ... and isn’t he liable for the organization’s sales as a result”? App. at 10a. Counsel agreed. The District Court did not err in holding Gonzalez responsible for the amount of drugs that passed through the conspiracy. See United States v. Gibbs, 190 F.3d 188, 214 (3d Cir.1999) (noting that “courts often have held enforcers for drug conspiracies responsible for the amount of drugs that pass through the conspiracy during the time the person acts as an enforcer”). We will not disturb the finding of drug amount.
Gonzalez next argues that the District Court erred in not granting him a reduction based on his acceptance of responsibility. He argues that under section 3El.l(a) of the Sentencing Guidelines, he merited a two-level reduction in the applicable Offense Level. The Government objected, noting that Gonzalez went to trial. The District Court stated that as a matter *855of law Gonzalez could receive the reduction but based on the facts it did not believe that Gonzalez warranted a reduction. See App. at 18a (“I simply believe in the facts of this case, I don’t believe what the defendant has pointed to warrants a two-level downward departure for acceptance of responsibility. I don’t think it is that kind of ease.... ”). Gonzalez argues that the District Court’s statements in denying this reduction were insufficient to constitute reasonable consideration of the matter. District courts, however, are granted a significant degree of discretion in such instances. For example, in Rita v. United States, 551 U.S. 338, 358, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), the Supreme Court noted that statements made by a district court concerning whether sentencing options were “appropriate” or “inappropriate” were legally sufficient because it was clear from the record that the district court had listened to both arguments and considered the supporting evidence. The District Court here heard both arguments, and it is clear that the District Court considered the law, the arguments of counsel, and the evidence. There is, therefore, no error and no basis to overturn its decision. See id. at 359, 127 S.Ct. 2456 (“[When] the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.”).
We recognize that in an exceptional case, a defendant’s post-conviction activities may warrant a reduction based on acceptance of responsibility, but such a decision requires remarkable change in the defendant’s behavior. See United States v. Sally, 116 F.3d 76, 80 (3d Cir.1997) (“[P]ost-offense rehabilitation efforts, including those which occur post-conviction, may constitute a sufficient factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility guideline was intended to apply.”). The District Court did not find that this case was exceptional. Although Gonzalez’s activities post-conviction are commendable, as he was a model prisoner, completed prison programs, and maintained good work reports with UNICOR, the District Court did not abuse its discretion in declining to grant Gonzalez a reduction based on acceptance of responsibility.
For the reasons set forth, we will affirm the judgment of sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. In addition, we may review the sentence imposed by the District Court pursuant to 18 U.S.C. § 3742(a).
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OPINION OF THE COURT
PER CURIAM.
Huo Xing Huang petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal from an Immigration Judge’s (IJ’s) final *858removal order. We will deny the petition for review.
I.
Huang is a native and citizen of China. He entered the United States in 2004 without proper documentation, and was placed in removal proceedings. He applied for asylum and related relief. Huang testified that he and his wife had twin girls in 1990, and that birth control cadres forcibly took his wife for sterilization in 1991. Huang said that his wife had the sterilization surgically reversed, and she had a son in 1999. In March 2000, the Huangs were found to be in violation of the population policy. Huang’s wife was forced to pay a fine in order to register her son. She was taken away to be sterilized, but the government decided it could not sterilize her because of her previous sterilization. Instead, Huang was taken forcibly to be sterilized on April 24, 2000.
The Immigration Judge (IJ) found Huang not to be credible. Huang submitted a medical evaluation from a radiologist in the United States, which states that there was “no definite evidence of prior vasectomy,” but that “sequela [sic] of this procedure may not be sonographically evident.” A.R. 282.1 The IJ noted that “[a]ny doubt raised in this evaluation was not rebutted by respondent’s [sic] through another medical examination.” IJ's decision, at A.R. 52. The IJ also found that Huang’s description of his vasectomy was not consistent with information in the Merck Manual of Medical Information. According to the IJ, Huang testified that “the underside of his penis was cut, which contradicted Merck’s description of vasectomy is evolving [sic] a cut in the scrotum.” A.R. 52. The IJ also faulted Huang for failing to have authenticated the sterilization certificate he submitted. The IJ also noted that Huang failed to provide any corroboration for his allegation that his wife was sterilized in 1991 or that her sterilization was reversed in 2004. A.R. 52-53. The IJ noted that information in the Merck Manual indicating that female sterilization may be reversed was not sufficient to corroborate Huang’s contention that his wife’s sterilization had been reversed. Id.
The Board of Immigration Appeals (BIA) found “no clear error” in the IJ’s adverse credibility finding. The BIA found no error in the IJ’s use of the Merck Manual, noting that an agency can take official or administrative notice of commonly acknowledged facts. A.R. 2. The BIA found that the questions the IJ asked Huang about his vasectomy were proper generalized questions, and were not “questions that only a medical professional could answer,” as Huang had argued on appeal. A.R. 3. Although recognizing that a vasectomy can in rare cases spontaneously reverse, the BIA also found that Huang’s positive sperm count, with no evidence that he had a surgical reversal of the vasectomy, undercut his claim. Id. The BIA found that Huang had submitted insufficient corroboration to overcome his incredible testimony. A.R. 4. Huang filed a timely petition for review.
II.
We review the final order of the BIA, but to the extent that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). “We will uphold the [adverse credibility] findings ... to the extent that they are supported by reasonable, substantial and probative evidence on *859the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).2
We agree with the BIA that the discrepancies between Huang’s description of his vasectomy, and information the IJ found in the Merck Manual, coupled with the doctor’s report finding no evidence of a prior vasectomy, and the report of Huang’s positive sperm count, “were a sufficient basis for the [IJ] to doubt the respondent’s credibility and the entirety of his asylum claim.” A.R.3.3 We recognize that there appear to have been some problems with translation at the hearing, and that Huang’s testimony (that he was cut “a little bit under the penis” — not, as the IJ said “on the underside of the penis”) was not necessarily inconsistent with information in the Merck Manual that an incision for a vasectomy would be made in the scrotum. Nevertheless, Huang did not sufficiently rebut the implications of the medical reports he submitted; ie., that he may never have had a vasectomy. Although Huang complains in his brief that the IJ relied on information in the Merck Manual regarding how a vasectomy is performed,4 he also cites the Merck Manual for the proposition that a vasectomy can be reversed spontaneously. Petitioner’s Brief at 8. However, as the BIA noted in its decision, such a reversal occurs “in less than 1 percent of vasectomies....” A.R. 3. Huang submitted no medical testimony or evidence that a reversal happened in his case.5 We do not find the evidence so compelling that a reasonable factfinder would have to conclude that Huang in fact underwent a forced vasectomy.
Because the BIA in this case properly deferred to the IJ’s adverse credibility finding, we will deny the petition for review.
. Another doctor's report submitted noted that Huang's semen had been sent to a laboralory for analysis, "and the result showed positive sperm cells count.” A.R. 283.
. This case is governed by the provisions of the Real ID Act of 2005 regarding review of adverse credibility findings, as Huang’s asylum application was filed after the effective date of the Act. See Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005). The new provisions, inter alia, purport to eliminate a requirement that an adverse credibility finding based on an inaccuracy or inconsistency involve the heart of the applicant's claim. See Lin v. Mukasey, 521 F.3d 22, 27-28 (1st Cir.2008). We need not consider the effects of the new provisions, as the inconsistencies cited by the IJ here clearly involve the heart of Huang’s claim.
. As the Government notes in its brief, Huang has not rebutted any of the BIA's findings on appeal, but has instead reiterated, without change, the arguments from his brief to the BIA.
. The Government notes, however, that at the hearing before the IJ, Huang withdrew his objection to admission of the Merck Manual excerpt. A.R. 97.
. Although one medical report Huang submitted noted that the sequelae of a vasectomy might not be sonographically evident, Huang submitted no evidence as to the likelihood that no scar would be visible in a doctor’s physical examination. Common sense dictates that it is possible that a small incision might heal without obvious evidence of a scar, but again, Huang did not provide evidence showing how common this is in the case of a vasectomy, nor how common it would be for an individual to have both an absence of scarring and a positive sperm count following a vasectomy. The contents of the medical reports Huang submitted certainly should have alerted him that the medical evidence in support of his claim was weak.
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OPINION
PER CURIAM.
John McCauley petitions for review of an order of the Office of the Chief Administrative Hearing Officer (“OCAHO”) entering summary judgment against him on his claims of citizenship-status discrimination under 8 U.S.C. § 1324b. We will deny his petition.
I.
Tate & Kirlin Associates, Inc. (“Tate & Kirlin”) hired McCauley as an account collector. On his first day of work, he refused to disclose his social security number on a form 1-9 and refused to present a copy of his social security card, as a Tate & Kirlin representative earlier had instructed him he would have to do. Instead, he produced his birth certificate and passport. After some discussion between McCauley and certain Tate & Kirlin representatives about whether McCauley was legally required to disclose his social security number or present a social security card, a Tate & Kirlin representative told McCauley that he would be terminated if he refused to do so. McCauley again refused and threatened to sue if Tate & Kirlin terminated him, which it then did.
Thereafter, McCauley filed a complaint with the Special Counsel for Immigration-Related Unfair Employment Practices pursuant to 8 U.S.C. § 1324b(c).1 McCau*861ley, who is and all his life has been a United States citizen, alleged that Tate & Kirlin discriminated against him on the basis of his citizenship in violation of 8 U.S.C. § 1324b(a). After the Special Counsel notified McCauley pursuant to 8 U.S.C. § 1324b(d)(2) of his right to bring a private action, McCauley filed a complaint with the OCAHO. He alleged that Tate & Kirlin: (1) terminated him because he is a United States citizen in violation of § 1324b(a)(l)(B); (2) committed so-called “document abuse” by failing to accept his proffered documents as proof of citizenship, again with the intent to discriminate against him because of his United States citizenship, in violation of § 1324b(a)(6); and (3) intimidated him and retaliated against him in violation of § 1324b(a)(5) by terminating him after he threatened to sue.
After a period of discovery, Tate & Kirlin filed a motion for summary judgment under 28 C.F.R. § 68.38. The Administrative Law Judge (“ALJ”) granted the motion by order entered March 5, 2009. McCauley petitions for review.2
II.
We have jurisdiction pursuant to 8 U.S.C. § 1324b(i)(l). We exercise plenary review over the ALJ’s application of the federal summary judgment standard, though we give deference to “an agency’s reasonable construction of a statute it is charged with administering.” Getahun v. Office of the Chief Admin. Hearing Officer, 124 F.3d 591, 594 (3d Cir.1997). Our review confirms that the ALJ thoroughly and accurately explained why Tate & Kirlin was entitled to summary judgment on each of McCauley’s three claims, and we will deny this petition for the reasons already adequately explained in her opinion.
In sum, McCauley’s first two claims required him to come forward with some evidence that, in terminating him and refusing to accept his passport and birth certificate in lieu of a social security card, Tate & Kirlin acted with the intent to discriminate against him because he is a United States citizen. See 8 U.S.C. §§ 1324b(a)(1)(B) & (a)(6); United States v. Diversified Tech. & Servs. of Va., Inc., 9 OCAHO 1095, available at 2003 WL 21130616, at *5, 10-11 (O.C.A.H.O.2003). We agree that McCauley came forward with no such evidence. Instead, his evidence showed only that Tate & Kirlin terminated him because he refused to disclose his social security number, not because he is a United States citizen.3
*862McCauley’s final claim required him to show that Tate & Kirlin terminated him because of a threat to file a charge under § 1324b. See 8 U.S.C. § 1324b(a)(5) (prohibiting interference with “any right or privilege secured under this section ” and retaliation for filing a charge “under this section ”) (emphasis added); Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 813-14 (7th Cir.2003) (explaining that this prohibition “is limited to complaints and charges regarding ... the subject of § 1324b”); Yohan v. Central State Hosp., 4 OCAHO 593, available at 1994 WL 269185, at *7 (O.C.A.H.O.1994) (same). As the ALJ correctly explained, McCauley admitted at his deposition that he never threatened to file a charge against Tate & Kirlin under this statute, and did not even know himself where he would file a claim at the time he threatened to sue. (A.R. 250-52.) Moreover, McCauley does not claim that he ever told Tate & Kirlin that he believed it was discriminating against him because he is a United States citizen, and he acknowledged that a Tate & Kirlin representative told him that he would be terminated for refusing to present a social security card even before McCauley issued his vague threat to file a complaint. (Id.)
Accordingly, we will deny the petition for review.
. McCauley previously had been terminated by a different employer for refusing to dis*861close his social security number. He sued that employer in federal court under Title VII and several other statutory and constitutional provisions. The District Court dismissed his complaint under Rule 12(b)(6), and we affirmed. See McCauley v. Computer Aid, Inc., 242 Fed.Appx. 810 (3d Cir.2007).
. McCauley also filed a motion for a "declaratory judgment” that he was not legally obligated to provide his social security number. The ALJ, noting that the OCAHO rules codified at 28 C.F.R. §§ 68.1-68.58 make no provision for the issuance of declaratory judgments, nevertheless discussed the substance of McCauley’s motion and declined to issue the declaration. McCauley has not directly challenged that ruling in his briefs, and we thus do not address it. To the extent that his briefs can be read to challenge the ALJ's discussion of the issues he raised in that motion, his arguments are irrelevant to the issues on appeal for the reasons discussed below.
. McCauley devotes much of his brief to arguing that he was not required to disclose his social security number, and he claims that he in fact disclosed it on his employment application. Those arguments are of no moment. Section 1324b prohibits only discrimination on the basis of citizenship or immigration status. Thus, even if McCauley’s arguments are true, and even if Tate & Kirlin somehow was mistaken in requiring his social security number or terminating him for refusing to provide it (all issues on which express no opinion), Tate & Kirlin’s actions were not in violation of this statute. While we thus need not address McCauley's arguments regarding *862social security numbers and the employment verification process, we refer him to our discussion of those issues in his previous appeal. See McCauley, 242 Fed.Appx. at 812-13. McCauley also makes repeated reference to the affidavit of Dalreese Holman, which he claims the ALJ wrongfully failed to credit. Mr. Holman's affidavit, however, contains nothing suggesting that Tate & Kirlin terminated McCauley because he is a United States citizen (A.R.109), and neither does any other evidence of record.
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OPINION
PER CURIAM.
Mindy Zied seeks review of the District Court’s order remanding her case to the Administrative Law Judge for further development of the record. For the following reasons, we will affirm.
In 1995, Mindy Zied filed for an application for Social Security disability insurance benefits (“SSDI”) and supplemental security income (“SSI”), which was denied by the state agency (“the agency”). Zied did not request a hearing appealing the denial of her application. In 1999, Zied attempted to reopen the application, but the agency deemed the attempt to be a second, separate application. On the merits of the second application, the agency determined that Zied was disabled and thus, entitled to SSI benefits as of March 1999. The agency denied her claim for SSDI, however, finding that her SSDI claim concerned the same issues as her earlier, unsuccessful claim for benefits in 1995 and that the facts relevant to her SSDI determination were unchanged.
In September 2001, Zied moved into a home owned by Zied’s mother-in-law, for which Zied and her husband paid rent of one dollar ($1.00). As a result of the reduced rent, which was deemed a “rental subsidy” and counted as income, Zied’s SSI was reduced between October 2001 and September 2002. In February 2004, the agency denied Zied’s request for reconsideration of the SSI reduction because she did not file a timely appeal of the decision.
In June 2001, Zied’s husband, who received a needs-based pension from the Veteran’s Administration (“VA”), also began receiving SSDI and SSI benefits, making Zied eligible for spouse’s benefits based on her husband’s earnings records. Zied was informed that beginning September 2002, she was not eligible for SSI benefits because of the excess income from her husband’s pension. However, Zied was told that if her husband voluntarily terminated his SSI, the agency would recalculate her SSI retroactively to September 2002. Zied’s husband voluntarily terminated his eligibility for SSI as of October 1, 2002, and Zied was informed she would receive a payment of retroactive benefits. However, Zied challenged the manner in which the retroactive benefits were calculated.1
In February 2004, Zied requested that the agency reopen her 1995 application for SSDI benefits on the grounds that after the application was denied, Zied lost the mental capacity to ask for reconsideration. The ALJ assigned to Zied’s case, while noting that such a request would normally be denied as untimely, nonetheless consid*864ered Zied’s argument for an exception in light of applicable regulations. The ALJ concluded that despite Zied’s “long-term psychiatric history,” the record did not show a treatment history from July 1974 through November 1995. The ALJ further noted that because the record demonstrated that Zied was married and raising children without complaining of difficulty in doing so and because she had filed an appeal after the initial denial of her 1995 application and was therefore well aware of the appeal process, he was unable to conclude that she was incapable of filing a timely request for reconsideration.
In November 2006, Zied filed an amended complaint in the District Court alleging that: (1) the agency improperly calculated her SSI between September 2001 and September 2002 as related to the rental subsidy; (2) the agency improperly counted her receipt of spouse benefits between November 2002 and February 2004; and (8) the agency improperly denied her request to reopen her 1995 application. In a report and recommendation issued on October 25, 2007, a Magistrate Judge recommended that the case be remanded to the ALJ because the ALJ had not addressed the issue of the rental subsidy calculation in his opinion, nor had he fully considered the record evidence regarding Zied’s mental capacity and ability to request reconsideration in her case.2
Zied objected to the Magistrate Judge’s report and recommendation, arguing only that the District Court should reverse the ALJ’s decision and award her benefits because the evidence showed that she was entitled to SSDI benefits based on her 1995 application.
The District Court rejected Zied’s argument and remanded the case for further proceedings, aptly pointing out that the ALJ had not considered key evidence concerning whether Zied was mentally capable of requesting reconsideration at the time of the agency’s initial decision to deny her SSDI benefits in 1995. Zied appeals from the District Court’s decision to remand her ease for further proceedings.
I.
We have appellate jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.3 We will review the District Court’s remand order for abuse of discretion. See Harman v. Apfel, 211 F.3d 1172, 1176, 1178 (9th Cir.2000); Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir.2000). In reviewing the District Court’s findings under the abuse of discretion standard, we must affirm the District Court’s holding unless its decision is based upon a factual error, an improper conclusion of law, or an inappropriate application of the controlling law to the facts. See Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.1993). We have also held that an abuse of discretion can occur when “no reasonable person would adopt the district court’s view.” Id.
II.
Upon review of the record, we find that the District Court did not abuse its discretion when it remanded Zied’s case for further proceedings. Despite Zied’s argument, the ALJ had not fully considered whether Zied was mentally capable of *865seeking reconsideration at the time the agency rendered its decision in 1995.
Because Zied requested to reopen her application for SSDI benefits in 2004, more than four years after the initial decision denying benefits, her application was untimely and could only be reopened if “[i]t was obtained by fraud or similar fault.” See 20 C.F.R. § 404.988(c)(1). To determine whether fraud or similar fault exists, the adjudicator must consider “any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language)” which the claimant may have had at the time. See 20 C.F.R. § 416.1488(c).
In her 2004 application requesting reopening and reconsideration of her case, Zied claimed that when she was denied benefits initially, she lost the mental capacity to request reconsideration. After reviewing the record, the District Court determined that the ALJ did not fully consider the record evidence before determining that Zied was indeed mentally capable of timely requesting reconsideration. Specifically, the District Court found that the ALJ failed to consider medical evidence regarding Zied’s multiple hospitalizations in 1973 and 1974, as well as the various mental health diagnoses of her treating physicians.
Because the ALJ appeared to have performed only a cursory review of Zied’s medical history, the District Court remanded the case further consideration of the administrative record. Zied nevertheless argues that remand would serve no purpose other than to delay her benefit award because the record is clear that she has been mentally impaired since 1972.
While a district court reviewing a decision of an ALJ adjudicating an SSDI claim may affirm, modify, or reverse the decision “with or without remanding the cause for a rehearing,” see 42 U.S.C. § 405(g), a district court should elect to order the award of benefits without a remand “only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” See Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir.1986).
In this case, remand was the appropriate course of action because the ALJ did not consider all of the evidence pertaining to Zied’s mental health. When an ALJ does not address all of the evidence of record, the appropriate action is to remand for further proceedings, as a District Court has no fact-finding role in reviewing social security disability cases. See Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir.1984). Thus, we find that the District Court’s decision to remand Zied’s case for further review and consideration of the administrative record was appropriate.4
*866Accordingly, we will affirm the order of the District Court.
. In September 2004, an ALJ determined that the SSI calculations were correct.
. With regard to the issue of the reduction of Zied’s SSI payments due to her receipt of spouse's benefits between November 2002 and February 2004, the Magistrate Judge determined that substantial evidence supported the ALJ’s conclusion that the calculations were correctly reduced.
. A district court order remanding such a case to the ALJ constitutes a final, appealable order under 28 U.S.C. § 1291. See Forney v. Apfel, 524 U.S. 266, 267-69, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998).
. Similarly, remand was the appropriate course of action as to the issue of the calculation of Zied’s SSI benefit due to a rental subsidy. The District Court correctly noted that the AU failed to address the issue in his opinion. Where an ALJ does not address an issue, remand for further proceedings is proper, particularly where a technical calculation is necessary. See Immigration and Naturalization Serv. v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002); Markle v. Barnhart, 324 F.3d 182, 189 (3d Cir.2003). With regard to the remaining claim in Zied’s amended complaint — that the agency improperly calculated her receipt of spouse benefits — she does not raise the issue in her appellate brief, nor did she object to the Magistrate Judge’s recommendation that the claim be denied. Because the District Court adopted the Magistrate Judge’s recommendation to deny the claim without further discussion, and also because Zied appears to have abandoned the issue on appeal, we express no opinion as to the appropriateness of the District Court’s denial of that claim.
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OPINION
PER CURIAM.
Rinaldo Diehl, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). We will affirm.
In October 2001, Diehl pleaded guilty to possession with intent to distribute more than 5 grams of cocaine base. See 21 U.S.C. § 841(a)(1) and (b)(1)(B). Diehl’s base offense level (BOL) was 31, after the court applied a downward departure of three points for acceptance of responsibility. Because Diehl had three prior drug felony convictions, the career offender Guidelines, U.S.S.G. § 4B1.1, applied and he was assigned a criminal history category of VI. The combined BOL/Criminal History score resulted in a Guidelines range of 188 to 235 months of imprisonment. Diehl moved for a downward departure, arguing that the career offender enhancements dramatically over-represented his prior criminal background of drug convictions involving small amounts of cocaine. The District Court declined to depart from the guidelines, and on May 29, 2002, imposed a prison sentence of 188 months. We affirmed his sentence on direct appeal. See United States v. Diehl, 65 Fed.Appx. 839 (3d Cir.2003).
*877In 2008, Diehl filed a pro se motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction, based on Amendment 706 to the Sentencing Guidelines, which generally reduced by two levels the base offense level for crack cocaine offenses. The District Court denied the motion, and this appeal followed. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of a district court’s interpretation of the Guidelines is de novo. See United States v. Sanchez, 562 F.3d 275, 277-78 (3d Cir.2009). We review a court’s ultimate determination of a defendant’s motion to reduce sentence under § 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 & n. 2 (3d Cir.2009).
A District Court may reduce a term of imprisonment under § 3582(c)(2) “only when two elements are satisfied: First, the defendant must have been ‘sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission;’ and second, the sentence reduction must be ‘consistent with applicable policy statements issued by the Sentencing Commission.’ ” United States v. Doe, 564 F.3d 305, 309 (3d Cir.2009) (quoting § 3582(c)(2)). The applicable policy statement provides that a sentence reduction is not authorized if the retroactive amendment “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2). In this regard, “the policy statement and § 3582(c)(2) are complementary.” Doe, 564 F.3d at 310.
In Mateo, we held that the crack cocaine amendment will not lower the applicable Guidelines sentencing rangé under U.S.S.G. § 4Bl.l(b) for career offenders. Mateo, 560 F.3d at 154-55. This is because “Amendment 706 only affects calculation under § 2D1.1(c), and the lowering of the base offense level under § 2Dl.l(e) has no effect on the application of the career offender offense level required by § 4B1.1.” Id. at 155. Because Diehl was sentenced as a career offender, the crack cocaine amendment does not affect his applicable sentencing range. Therefore, he may not obtain a reduction in his sentence pursuant to § 3582(c)(2), and the District Court did not err in denying his motion to reduce his sentence. We also reject Diehl’s arguments that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), require a different result. Neither case provides a basis for a reduction of sentence not otherwise allowable under § 3582(c). See Mateo, 560 F.3d at 155,156.
We will affirm the judgment of the District Court.
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OPINION
PER CURIAM.
Appellant Tosin Adegbuji, proceeding pro se, filed a civil rights lawsuit against various corrections and medical defendants affiliated with the Middlesex County Adult Correctional Center (“MCACC”) in April 2003. The complaint was based on events occurring at MCACC while Appellant was being held there as an Immigration and Naturalization Service (“INS”) detainee.1 While the underlying proceedings were pending, Appellant was granted withholding of removal to Nigeria but denied asylum. He was subsequently removed to the United Kingdom, where he remains today. In an opinion and order dated September 28, 2006, 2006 WL 2806289, the District Court entered summary judgment in favor of all defendants on all causes of action except: (1) against Defendants Johnson and Botnick, on the charge that they used excessive force in restraining Appellant while locking him in his cell, and (2) against Defendant LaSalla on the charge that he retaliated against Appellant and violated his procedural due process rights. *879The Court then set a trial date of December 5, 2006 for all remaining issues.
On November 20, 2006, Appellant filed a motion in the District Court requesting a “90-day extension of time within which to begin the trial” due to his inability to enter the country without prior permission from the Department of Homeland Security. Appellant alleged that his application for permission to temporarily enter the United States had been filed on November 5, 2006 and that he had been appointed counsel in connection with his appeal of the INS’s removal order and was awaiting a date for oral argument before the Third Circuit Court of Appeals. In the alternative, Appellant requested that the Court appoint counsel to represent him at trial. On November 27, 2006, the District Court denied Appellant’s requests for a continuance of the trial date and for the appointment of counsel. Noting Appellant’s failure to request permission to enter the United States until November 5, despite the Court’s having informed the parties of the trial date on September 28, the Court held that Appellant had not acted diligently in filing his request. On December 8, 2006, with Appellant having failed to appear for trial, the Court dismissed the action with prejudice and without costs.
On December 21, 2006, Appellant filed a motion for reconsideration of the dismissal of the action based on his failure to appear at trial. In his motion, he explained that he mailed his application for permission to re-enter the United States on October 4, 2006, three days after receiving notice of the trial date, and that it was received the following day, but was not filed until November 5, 2006. He further represented that he was informed by DHS that his application would require a minimum of 90 days from the filing date for processing. Based on the foregoing, Appellant argued that he had exercised diligence in seeking permission to re-enter.
On February 15, 2007, the District Court granted Appellant’s motion, and rescheduled the trial for March 12, 2007.2 On March 7, two weeks before the trial was set to begin, Appellant informed the Court that he had not yet received a response to his DHS application, detailed his efforts to obtain further information about his status, and requested a second adjournment. The court issued a one-sentence order denying his request. On March 21, 2007, with Appellant and counsel for Appellees all appearing telephonically, the Court denied Appellant’s requests: (i) for a bench trial, (ii) to conduct the trial telephonically, and (iii) for a continuance. After hearing briefly from each of the parties, the Court made the following findings on the record with respect to Appellant’s request for a continuance:
The last thing we have here is whether or not, this is what Mr. Adegbuji is requesting, another extension of time, [sic] Basically to be permitted upon the facts that he’s trying to work through the Attorney General or the Department of Homeland Security in order to secure some type of permission to re-enter the country. Evidently Mr. Adegbuji had been deported some time ago. He’s not authorized to enter the United States at this time. He has obviously made some efforts but in November he had represented to this Court he thought it would take 90 days. We’ve now waited five months. As far as I can tell we’re no farther [sic] along the process than we were five months ago. It’s speculative at best to think that either the Attorney General or the Department of Homeland *880Security will permit his re-entry into the United States. This case is four years old. I think it was instituted in April of 2003. So, it’s one of the oldest cases on the docket.
The Court is mindful that Mr. Adegbuji is not the only person that is part of this case. There are officers, there’s [sic] municipalities. Fairness to them requires that I bring a conclusion to this matter. Mr. Adegbuji has had ample opportunity to be here and to be present. He’s unable to do that. Although it may be for reasons out of his control, certainly the defendants in this case also have a right to fairness and fairness in this instance dictates that the case be dismissed at the present time with prejudice. I note that, I guess the rules would provide that lack of prosecution by the plaintiff would permit such dismissal.
So, relying upon those rules, Mr. Adegbuji’s failure to appear for trial twice now, warrants dismissal with prejudice.
(Supplemental App. 216.)
The District Court entered judgment against Appellant on March 28, 2007. Appellant appealed, maintaining that the Court erred in dismissing the action with prejudice rather than staying it pending his receipt of a response from DHS. On September 7, 2007, after receiving responses from the parties, we entered an order summarily vacating the District Court’s judgment and remanding the matter for explicit consideration of the of the factors delineated in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984), which we have required district courts to consider in connection with the entry of involuntary dismissal of a plaintiffs action pursuant to Federal Rule of Civil Procedure 41(b). Upon receipt of our order, the District Court ordered briefing on the Poulis issue. On January 7, 2008, the Court entered an order dismissing Appellant’s case with prejudice for the reasons set forth in the record.
On May 16, 2008, a transcript was entered onto the District Court docket reflecting the District Court’s January 7, 2008 oral findings on the Poulis factors:
(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 867 (emphasis in original).
The Court held that it was difficult to evaluate the first, third or fourth factors in this case, as Appellant was deported due to his own criminal conduct, but has not intentionally delayed proceedings for reasons other than his removal from this country. (Supplemental App. 233-34.) Additionally, while the Court concluded that there was sufficient merit to Appellant’s underlying claims to permit them to proceed to trial, the Court considered Appellant’s case to be “weak.” (Supplemental App. 234.) However, the Court concluded that the second and fifth factors clearly favored Appellees:
In this case there is potential prejudice to the defendant. This case is close to five years old at the present time. I believe that the attorneys for the defendants had indicated that a number of the witnesses had retired or left the service of the Middlesex County Department of Corrections. So, there’s substantial prejudice to the defendants in this case.
The fifth factor is whether less restrictive sanctions are sufficient. This is *881not a case of where other sanctions are available. It is a lack of prosecution due to his immigration status. Plaintiff is required to be here at the time of trial but it didn’t happen. I don’t believe there would be any other sanction that would be available. Plaintiff has been given sufficient time to resolve this matter.
So looking at all the factors it seems to me that the most substantial one is the prejudice to the defendants. The case is five years old. When cases get old, witnesses’ memories fade. In addition, some of the witnesses may not be available, further prejudicing defendants. So it seems to me, there’s substantial prejudice that warrants dismissal.
Having said that, the Court dismisses this case with prejudice after a thorough consideration of the Poulis factors.
(Supplemental App. 238-34.) Although it concluded that the case should be dismissed, the Court provided Appellant with an approximately six-month window during which he could move to re-open the proceedings should he receive permission to re-enter the United States. (Supplemental App. 234.) On July 23, 2008, the Court entered an order extending that time period until November 1, 2008 based on Appellant’s representation that he had an interview scheduled with the United States Embassy on August 29, 2008. (Supplemental App. 182-83.) During that interview, it was determined that Appellant was not eligible for a Non-Immigrant Visa Waiver and, therefore, would not be permitted to enter the United States to attend trial. (Supplemental App. 185-87.)
Appellant timely appealed from the District Court’s January 7, 2008 order of dismissal.3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a dismissal for failure to prosecute for abuse of discretion. See In re Jewelcor Inc., 11 F.3d 394, 397 (3d Cir.1993).
Appellant argues that his civil action should not have been dismissed, as “all of the six factors do not weigh in favor of dismissal.” (Appellant Br. 10.) However, we have never required complete satisfaction of each Poulis factor in order to justify the sanction of dismissal. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992) (“As we have already recognized, not all of the Poulis factors need be satisfied in order to dismiss a complaint.”); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988) (“Not all of these factors need be met for a district court to find dismissal is warranted.”). Rather, we have stated that we will be guided by the way in which the District Court balanced all six of the Poulis factors. See Poulis, 747 F.2d at 868; see also Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 80 (3d Cir.1982) (explaining that there must be some “articulation of the basis for the [district court’s] action ... [to] enable the reviewing court to determine whether the relevant factors were considered and assigned appropriate weight in making the decision”). As we have explained, we do not ask whether we would have made the same decision as the District Court, but rather whether the District Court abused its discretion in reaching the decision it did. See Mindek, 964 F.2d at 1373 (“Ultimately, the decision to dismiss constitutes an exercise of the district court judge’s discretion and must *882be given great deference by this Court — a court which has had no direct contact with the litigants and whose orders, calendar, docket and authority have not been violated or disrupted.”). Based on the protracted proceedings which have transpired below, the numerous opportunities the District Court provided Appellant to obtain permission to re-enter the United States, the length of time which has transpired since Appellant’s complaint was filed, and the District Court’s assessment of the prejudice to Appellees and the lack of alternative sanctions, we cannot conclude that the District Court’s decision constitutes an abuse of discretion. Appellant further argues that the Court failed to make findings as to the prejudice to Appellees or the effectiveness of sanctions other than dismissal. (Appellant Br. 12-13, 15-16.) However, the transcript of the District Court’s findings belies this assertion.
Based on the foregoing, we will affirm the judgment of the District Court.
. Effective March 1, 2004, the INS was abolished and its functions transferred to the Department of Homeland Security ("DHS”).
. The following week, the Court rescheduled the trial to March 21, 2007 at the request of one of the Appellees’ attorneys.
. On January 18, 2008, Appellant timely filed a motion for reconsideration, which tolled the time for taking an appeal. See Fed. R.App. P. 4(a)(4). His notice of appeal was filed on April 21, 2008, within thirty days of the District Court’s denial of his motion for reconsideration. See id.; see also Fed. R.App. P. 4(a)(1)(A).
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